Genocide for a long time was a crime without a name. The term was first coined in 1944 by Polish-Jewish lawyer Raphel Lemkin, who derived it from two words: the ancient Greek word genos (race or tribe) and the Latin cide (killing). Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation.Footnote 1 Despite the range of acts that meet the definition of the term, it is most commonly used in reference to campaigns involving large-scale massacres.Footnote 2
The twentieth century is deservedly known as the century of genocide, during which the world witnessed at least 65 known genocides.Footnote 3 It was also the century in which the term of genocide was invented, codified into law, and internationalized, after which many states adopted the international definition of the crime into their domestic canon of law.Footnote 4 The term “genocide” was legally defined for the first time in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide. The Convention classifies genocide as any act committed with intent to destroy in whole or in part a national, ethnical, racial, or religious group, including “(a) killing the members of the group, (b) causing serious bodily or mental harm to members of the group, (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, (d) imposing measures intended to prevent births within the group, and (e) forcibly transferring children of the group to another group.”Footnote 5 The term was also legally defined in article 4(2) of the International Criminal Tribunal for Yugoslavia (ICTY), article 2(2) of the International Criminal Tribunal for Rwanda (ICTR), and article 6 of the Rome Statute.
The ICTR defined the crime of genocide as “first, one of the acts listed under article 4(2) of the Statute was committed; secondly, this act was committed against a specifically targeted national, ethnic, racial or religious group, as such, and thirdly, the act was committed with intent to destroy in whole or in part the targeted group.”Footnote 6 The ICTY similarly defined genocide as “any criminal enterprise seeking to destroy in whole or in part a particular kind of human group, as such, by certain means, those are two elements of the special intent requirement of genocide: firstly the act or acts must target a national, ethnical, racial or religious group, secondly the act or acts must seek to destroy all or part of that group.”Footnote 7
The crime of genocide requires that the victims are members of protected groups, or were mistakenly believed to have been so.Footnote 8 The Genocide Convention does not protect all types of human groups, but rather to four particular groups: national, ethnical, racial, and religious groups.Footnote 9 It protects those groups’ right to exist; “existence” means the group's physical and biological existence, while “physical” usually refers to the human body or in a wider sense, to all elements of the material world, including the physical conditions that give life to the human members of the group.Footnote 10
The four protected groups (national, ethnical, racial, and religious) are enumerated in Article II of the Genocide Convention. The drafters of the Rome Statute during the Rome Conference rejected proposals aimed at enlarging the scope of the list. For example, linguistic groups were rejected because it was felt that this was redundant, but political, economic, and social groups were quite intentionally excluded, because the drafters did not believe that they should be protected by the terms of the Genocide Convention.Footnote 11
Ad hoc tribunals and distinguished scholars have explained in further detail the definition of the protected groups. The national group is placed first in the list, as “a collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.”Footnote 12 Besides the above definition, three other approaches can be considered in defining a national group: first, it could mean all citizens of a given state; second, it could be equated with existing covenants and rules on the protection of “national minorities,” which would include expatriate groups; and thirdly, it could be extended to embrace any plurality of persons entitled to found a new state by virtue of the right of self-determination.Footnote 13
The second group in the list is “ethnical,” a word that derives from the Greek word “ethnikos,” which had a three-layered meaning in the classical world. Ethnikos was defined firstly as adapted to the genius or customs of a people, secondly as suited to the manners or language of foreigners, and thirdly as heathenish, pagan, or alien to the beliefs of the beholder. The ordinary meaning of “ethnic” continues to largely imply these same three elements, reflecting the entirety of cultural, historical, customary, lingual, and religious individualities, and the whole way of life and mode of thought of a group which sets it apart from its neighbors, although the term “ethnical” clearly canters around cultural and social aspects.Footnote 14 The ICTR defined “ethnical group” as “one whose members share a common language and culture; or, a group which distinguishes itself, as such (self-identification); or, a group identified as such by others, including perpetrators of the crimes (identification by others),”Footnote 15 or more simply as one whose members share a common language or culture.Footnote 16
The third group is racial, which is defined as being “based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.”Footnote 17
The last protected group is religious, which is defined as “groups whose members share a deeply entrenched belief in a metaphysical controlling power, and whose activities are focused on the fulfilment of their belief's maxims.”Footnote 18 The ad hoc tribunals also defined as a religious group any denomination or mode of worship or sharing of common beliefs,Footnote 19 or whose members share the same religion, denomination, or mode of worship.Footnote 20
Yazidi as a Protected Group
To determine whether the crime of genocide has been committed, the target group shall be considered in relation to the categories identified in the Genocide Convention. The Yazidi community is one of the oldest ethnic and religious communities in the Middle East, and is indigenous to the region. The majority of Yazidis live in northwestern Iraq in areas surrounding Shangal Mountain and the Shekhan district; additionally, there are some Yazidi villages and towns in the Duhok Governorate in the Kurdistan Region of Iraq (KRI),Footnote 21 as well as in Syria, Turkey, Armenia, and Georgia. According to their own estimates, the population of the Yazidi community in Iraq is around 560,000, and, although there are no official statistics, they are considered the second largest religious minority after Christianity.Footnote 22 Etymologically, some argue that Yazidi refers to Ezidi, which is derived from the Sumerian root Êzidî, which means the ones who are on the right path and have the good and unspoiled spirit.Footnote 23 Others argue that Yazidi refers to Yezi, meaning God. Yezdai means the Creator in the Kurdish language, and Ezdan means God in Farsi. Alternatively, Yazidi may refer to “slave of the Creator” in the Yazidi religion.Footnote 24 According to some Ottoman archives and unofficial documents, Yazidis are described as “descendants of ‘Yezid bin Muaviye’ who was the second caliph of the Islamic ʿUmayyad caliphate.”Footnote 25
The Yazidi religion is structured according to social classes and ranks, similar to the Indian caste-system. At the top there is the Mir (Prince) and the Baba Sheikh (the spiritual leader), directly below them are forty sheikhs divided into three factions: Adani, Achammsana, and Qatani. There are also forty Pirs, who are tasked with regulating the religious affairs of the followers. Ordinary Yazidis are called Mureed (followers). The Mureed cannot get married to members of the Sheikh and Pir classes, and Pirs and Shaykhs cannot intermarry either.Footnote 26 Yazidism requires that a Yazidi child must have two Yazidi parents – mixed marriages are theologically impossible.Footnote 27
The Yazidi faith is the belief that Xuada (God) created the world, including Lalish (the holiest place according to the Yazidism), in seven days and entrusted it to seven holy angels, including Tawûsê Melek (the Peacock Angel), who Yazidis believe to be the head of the angels in the Yazidi religion.Footnote 28 This association with the Peacock Angel that has led to the Yazidi being misleadingly described as “devil worshippers.”Footnote 29 Other common misconceptions include the perception that the Yazidi religion contains polytheistic elements and prejudices about the fact that they have an oral tradition rather than a written scripture.Footnote 30
Throughout history, there have been attempts by both Yazidis and non-Yazidis to link the group to a specific ethnic identity, usually in connection with contemporary political factors. One theory views the Yazidis as descendants of the ancient Assyrians; another theory provides for a totally Islamic origin for the Yazidis; and yet another theory, associated with Kurdish nationalism, claims descent from the Medes for the Kurds.Footnote 31 But Yazidis are a religious minority with many taboos and a strict caste system. They are neither Muslim, Christian, nor Jewish and therefore not “People of the Book.” This has had important implications for their legal status and it still shapes their relationships with their neighbors and national political authorities. Their religion contains elements originating in various major religions, but cannot be defined as purely, or even principally, Christian, Islamic, or Zoroastrian.Footnote 32
Material Elements
Killing Members of the Yazidi Community
Killing members of the group means causing the death or, more precisely, diminishing the natural lifespan.Footnote 33 According to the Rome Statute, killing a single victim is sufficient to commit the crime of genocide; the term “killed” is interchangeable with the term “caused death,” which means simply that the death of the victim would not have occurred but for the perpetrator's conduct.Footnote 34 Since ISIS first attacked Sinjar in early August 2014, evidence has emerged indicating that it has pursued a campaign of killing and targeting minority groups, including the Yazidi.Footnote 35 ISIS fighters executed at least 2,000 Yazidis and captured another 6,417, whom they imprisoned and subjected to a system of torture and ill-treatment.Footnote 36 Those Yazidi who managed to survive the initial onslaught reported that as soon as they were intercepted by the ISIS fighters, they were told to convert to Islam or be killed; and those who refused were killed immediately.Footnote 37
Within the early days of the attack, the United Nations Assistance Mission in Iraq (UNAMI) gathered evidence that proved ISIS deliberately attacked the Yazidi community and killed them. Their reportsFootnote 38 show a systematic approach in which ISIS attacked from different bases to encircle the mountain and capture the Yazidi villages within 72 hours.Footnote 39 For instance, on August 3, 2014, ISIS chased ten Yazidi families fleeing the al-Qahtaniya area, killing the male members and abducting the females and children. On August 4th, the ISIS fighters killed 60 Yazidi men from Hardan village in Sinjar city and abducted their wives and daughters. On the same day, at least 200 Yazidi were killed in Sinjar city, and 60 to 70 more were killed in the Ramadi area. ISIS also abducted at least 50 women from the Tal-Binat area.Footnote 40 Also on August 4th, approximately 400 males were massacred in the Yazidi village of Kocho, and 67 male members of the Yazidi community were killed in the village of Qani. In both villages, ISIS gathered villagers in a school and then took the males in batches to a nearby farm to execute them by gunfire.Footnote 41 The same day, about 80 men were killed in Qani.Footnote 42 On August 6th, more than 50 bodies with visible signs of torture were seen near Dhola village. One hundred were killed in Khana Sor village in the Snono sub-district, and 250-300 were killed – at least ten of them beheaded – in the Hardan area. On August 15th, ISIS gathered all males older than ten years at a local school, took them outside the village by pick-up trucks, and shot them. As many as 400 males were killed that day; dozens of women and children were abducted, and possibly as many as 1,000 were taken away to unknown destinations in Tal Afar. Some people were shot by ISIS while trying to escape, and 14 elderly Yazidi men, some with disabilities, were executed in Sheikh-Mand Shrine.Footnote 43
ISIS fighters divided the captured Yazidis into groups of men and boys and of women and children. ISIS killed the men and boys who refused to convert to Islam after being asked three times,Footnote 44 while transporting the remaining Yazidis to designated centers deep within ISIS-controlled territory. Yazidi women were divided into groups of married women with children, married women without children, and unmarried women and girls.Footnote 45 In some cases, the elder women were executed right away.Footnote 46
ISIS carried out numerous mass killings. After retaking areas from ISIS, the Iraqi and Kurdistan Regional Government (KRG) authorities, as well human rights organizations, confirmed the discovery of mass graves containing the bodies of those killed. UNAMI and as well as Yazda, a Yazidi advocacy, aid, and relief organization, published three reports about the investigation into the mass graves. In the Sinjar district of Mosul alone, which is predominately Yazidi, 95 mass graves were found. The smallest of them contained the bodies of eight civilians, while the largest is believed to have contained up to 4,000 corpses.Footnote 47 At one of the mass graves, ISIS fighters took Yazidi women from the village of Kocho who were 60 years and older and executed on the grounds of a school known as the Solagh Technical Institute.Footnote 48 Another five mass graves have been discovered, which the organization Yazda organization codifies as Kocho.1, 2, 3, and 4; they contained 45, 50, 13, and 25 people, respectively.Footnote 49 According to another report from Yazda, by January 28th, 2016, Iraqi and KRG authorities discovered 35 mass graves of the Yazidi people who were killed by ISIS fighters.Footnote 50 According to the latest reports, Yazda identified a further 21 mass graves.Footnote 51
The United Nations Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD), in coordination with the Mass Graves Directorate and the Ministry of Health of Iraq as well as the KRG, excavated 17 mass graves in and around the village of Kojo in the Sinjar district. The work was conducted in line with international standards, and this work has gathered evidence that may be crucial to future prosecutions in relation to atrocity crimes punishable under the Rome Statute.Footnote 52 The European Parliament estimated that 5,000 Yazidis were killed, and stated that there is clear evidence of mass graves of Yazidi people who were abducted and systematically killed by ISIS,Footnote 53 constituting evidence of the crime of genocide.Footnote 54
International bodies have been cautious in determining whether ISIS has committed the specific crime of genocide.Footnote 55 In August 2014, the Special Adviser of the UN Secretary-General on the Prevention of Genocide and the Special Adviser on the Responsibility to Protect, noted, somewhat tentatively, that “the reports we have received of acts committed by ISIS may amount to the crime of genocide.”Footnote 56 It could be said forthrightly that the acts of ISIS toward members of the Yazidi Community qualify as genocidal acts by killing listed in the Genocide Convention.Footnote 57
Causing Serious Bodily and Mental Harm on the Yazidi People
The expression “serious bodily or mental harm” is not defined in detail in the Genocide Convention, and nor have the ICTR, ICTY, and International Criminal Court (ICC) defined it either. The only explication of the term has come from the ICTR Appeals Chamber. The Appeals Chamber described “the quintessential examples of serious bodily harm” as “torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs, serious mental harm includes; more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat,” and specified that “to support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a protected group must be of such a serious nature as to threaten its destruction in whole or in part.”Footnote 58 The International Court of Justice (ICJ) has defined acts causing “serious bodily or mental harm” sufficient to constitute genocide as any conduct including, but not necessarily restricted to, “acts of torture, rape, sexual violence or inhuman or degrading treatment.”Footnote 59 Whether such acts amount to genocide, as opposed to war crimes and crimes against humanity, depends on whether they were committed with specific intent to destroy the protected group in whole or in part.Footnote 60
There is conclusive evidence that ISIS has inflicted serious bodily or mental harm, by way of torture, beatings, and inhuman and degrading treatment, with specific intent to destroy the Yazidi religious group.Footnote 61 According to Amnesty International, in August 2014, ISIS fighters abducted thousands of Yazidi men, women, and children who were fleeing the ISIS takeover of the Sinjar region; hundreds of the men were killed and others were forced to convert to Islam under threat of death, and many were subjected to torture and ill-treatment. Some of the Yazidi women and girls who have escaped ISIS captivity, as well as some of those who remained captive, have given harrowing accounts to Amnesty International of the torture and abuses that they suffered.Footnote 62
The ICTY Trial Chamber found that the women who were separated from male family members suffered serious mental harm, which had a profound psychological impact upon them. Separating the women from their husbands, sons, and other male family members caused them grave concern about their own fate and that of their loved ones, a fear that was entirely justified and real.Footnote 63 Some Yazidi women and children suffered even greater mental harm as a result of being forced either to bear witness to the murder of their male relatives or to watch them being taken away to an unknown fate. Worse still, ISIS fighters severely beat captured Yazidi women and girls if they resisted rapes, attempted to escape, refused orders to complete tasks for the fighters and their families, or tried to prevent ISIS fighters from removing their children or siblings from their care. Severe trauma and mental anguish were being inflicted on Yazidi mothers as a consequence of ISIS fighters taking their daughters to sell into sexual slavery, and their sons to be indoctrinated and recruited in ISIS forces.Footnote 64
Recent research pointed to an increase in health problems among the Yazidi population. A major household study of displaced Yazidi people found a high prevalence of non-communicable diseases: 19% of those surveyed suffered from hypertension, 13% had musculoskeletal conditions, 10% percent had diabetes, and 6% had cardiovascular diseases. All these diseases were associated with increased stress levels. Of 1,100 Yazidi women who joined the German Special Quota Program, 78% were diagnosed with PTSD, 63% with depression, and 2.7% with an adjustment disorder.Footnote 65
It can only be the affliction of “serious bodily or mental harm” that results in such grave and long-term disadvantages in a person's ability to lead a healthy and constructive life.Footnote 66 Displaced Yazidi people who were living in refugee camps as a result of the ISIS attacks, too, were suffering from restrictions concerning regular and healthy food. The conditions in camps were unhygienic. The displaced people were provisionally housed in tents or containers, which offered poor protection from the searing heat. They lacked laundry facilities, basic medical services, and an adequate food supply due to the remote location of the camps. Diarrheal diseases were widespread, and their educational, social, cultural, and religious needs went mostly unmet.Footnote 67
Rape and sexual violence constitute genocide if committed with specific intent to destroy a particular group. It is also one of the most damaging ways of inflicting serious bodily and mental harm on members of the group. After the Rwandan genocide, the ICTR Chamber had held that the acts of rape and sexual violence against Tutsi women were committed solely because they were Tutsi. As they were humiliated, mutilated, and raped several times, often in public or by more than one assailant, these acts resulted in the physical and psychological destruction of Tutsi women, their families, and their communities. Sexual violence was an integral weapon in this process of destruction, as the perpetrators specifically targeted Tutsi women as a horrific means of destroying the Tutsi group as a whole.Footnote 68 The ICC has defined rape as force, threat of force, coercion, or taking advantage of a coercive environment that undermined the victim's ability to give voluntary and genuine consent.Footnote 69
Sexual violence was employed by ISIS as a tool of genocide against the Yazidi community. ISIS fighters raped Yazidi women pursuant to a plan of self-perpetuation aimed at transmitting their ideology to a new generation who could be raised in their own image. In this way, women's bodies were used as “biological weapons” to alter the demography of the region.Footnote 70 The available evidence also indicates that ISIS targeted Yazidi women not just because they were women but specifically because they were both Yazidi and women.Footnote 71 There is overwhelming evidence of such rapes occurring from survivors themselves, who display both physical and psychological wounds; ISIS fighters even raped Yazidi girls as young as nine.Footnote 72 This conduct was extreme because it was deeply institutionalized and mimicked the slave trade of previous centuries, which was done openly and treated victims as chattel. Most importantly, it was done proudly and explicitly.Footnote 73
There is an abundance of written evidence that ISIS not only tolerated, but also actively encouraged and sanctioned the rape, torture, and enslavement of Yazidi women captives. Indeed, the ISIS bureaucracy issued multiple fatwas dealing with the treatment of women slaves. A manual on women captives issued at the end of 2014 answered a number of questions about relations between ISIS members and women slaves. It stated that “sex with a woman slave [is permitted], but if the slave is not a virgin, ensure that she is not pregnant.” The manual also regulated various rules, among other things, the appropriate forms of “disciplinary beatings.”Footnote 74 Girls and unmarried women who escaped from ISIS captivity recounted to investigators the process by which they were raped and sexually enslaved. ISIS members numbered them or recorded their names on lists and inspected them to evaluate their beauty; while some were given as “gifts,” others were sold to local or foreign ISIS fighters. Some victims were privy to price negotiations between “vendors” and “buyers,” whereby girls would then be prepared for rape.Footnote 75
UNAMI received reports that between 450 and 500 women and children were raped and sexually assaulted by ISIS fighters, with 150 unmarried girls and women, predominantly from the Yazidi community, reportedly transported to Syria, either to be given to ISIS fighters as a reward or to be sold into sex slavery. Also, UNAMI conducted an interview with an adolescent Yazidi girl who had been abducted by ISIS when they attacked her village. She stated that ISIS took hundreds of women; the girl stated that she was raped several times by several ISIS fighters before she was sold in a market.Footnote 76 Amnesty International, in its report Escape From Hell, Torture and Sexual Slavery in Islamic State Captivity in Iraq, interviewed 42 Yazidi women who had been abducted by ISIS and then escaped. They recounted their life under ISIS control, stating that ISIS had abducted many Yazidi girls and women and then raped them, adding that some managed to escape, while others remained in captivity or were killed.Footnote 77
Deliberately Inflicting Acts of Physical Destruction on the Yazidi Community
Among the acts that constitute genocide is “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” According to the ICTR, this includes methods of destruction that do not immediately lead to death but rather to circumstances that cause a slow death, such as the denial of proper housing, clothing, hygiene and medical care, the imposition of excessive work, physical exertion, or starvation, and withholding sufficient living accommodation for a reasonable period.Footnote 78 The ICTR further defined the term “conditions of life calculated to bring about physical destruction” to include deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.Footnote 79
ISIS attacked Sinjar city,Footnote 80 which led to 96 percent of the population fleeing.Footnote 81 On August 5th, the United Nations International Children's Fund (UNICEF) reported that families who had fled to Sinjar Mountain, including up to 25,000 children, were in immediate need of assistance, due to lack of drinking water and sanitation services. It also reported that around 40 Yazidi children had died as a consequence of hunger, thirst, and dehydration.Footnote 82 The Iraqi air force delivered food and relief through a humanitarian airdrop operation over the mountains.Footnote 83 The UNHCR reported that an estimated 20,000 to 30,000 people remained trapped on Sinjar Mountain without food, water, or shelter.Footnote 84 ISIS fighters kept Yazidi women and children in inhumane living conditions, providing insects for food and forcing them to drink from toilets.Footnote 85
Imposing Measures to Prevent Births and Forcibly Transferring Yazidi Children
The final two acts enumerated in Article II of the Genocide Convention are linked in the sense that they aim to destroy the future of a group through measures to prevent births or the forcible transfer of children away from the group. The first is a “biological” form of genocide, covering measures directed against the capacity of group members to procreate. These measures can be divided into two categories: methods devised to destroy the reproductive capacity of a group by physical means, and the setting up of insurmountable psychological obstacles to having children.Footnote 86 In patriarchal societies, where membership of a group is determined by the identity of the father, during rape, a woman of the protected group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother's group, which could be grounds for genocide.Footnote 87 Imposing measures to prevent births within the group can be also achieved through mental effects. For instance, rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.Footnote 88 Apart from the fact that the offspring of such circumstances is considered as belonging to the father, these children cannot even become members of the Yazidi community according to the Yazidi religion, as members of the group require two Yazidi parents, and it is not possible to convert to the Yazidi religion.Footnote 89
The UNHCR reported that abortions were performed on captured pregnant women. One woman recounted that a member of ISIS sat on her stomach to kill her unborn child, saying: “this baby should die because it is an infidel.” Another witness said that prior to an abortion performed on two pregnant women, an ISIS fighter stated “we do not want more Yazidis to be born.”Footnote 90 The sexual violence against the Yazidi women and girls resulted in many women not wanting to marry, or to contemplate relationships with men in the future. This was compounded by the sense that they lost their honor. This lasting psychological damage is another way in which the rapes constituted a measure to prevent births within the group.Footnote 91
Lastly, ISIS also committed genocide via “forcibly transferring children of the group to another group,” as defined in the UN Convention. On April 26th, 2014, the ISIS leader Abu Bakr al-Baghdadi issued a fatwa in which he ordered the separation of Yazidi children from their mothers, with children as young as two years old to be transferred to the Madrassa Jihadia “indoctrination school,” and those over ten years old to be sent to the Jihadia Institute in Tall-Afar. The fatwa also decreed that the women were to be transferred throughout ISIS-held Iraq and Syria, and presented to so-called “emirs” for sexual exploitation.Footnote 92
Specific Intent
In addition to the material elements described above, the crime of genocide requires that the perpetrators have acted with specific intent to destroy a protected group. General intent relates to the acts listed in the offense and specific intent relates to the knowledge by the perpetrators that their actions target one of the protected groups.Footnote 93 Investigators or prosecutors typically look first to evidence that genocidal crimes were committed and then analyze whether or not the person responsible acted with genocidal intention.Footnote 94 Proving genocidal intent with direct evidence can be extremely difficult if the accused does not confess, but judges can rely upon circumstantial evidence, including the gravity of the offense, the existence of a plan or a policy to exterminate a protected group, the fact that only members of a particular group were attacked, and meaningful accessory actions, such as the destruction of cultural property belonging to the protected groups.Footnote 95
The term “intent” in Article II of the Genocide Convention was defined by the ICJ to require evidence of acts on a scale that establishes an intent not only to target certain individuals because of their membership to a particular group, but also to destroy the group itself in whole or in substantial part.Footnote 96 The ICTR has held that a “wide-scale attack against the targeted group” is sufficient circumstantial evidence to prove intent, and determined that genocidal intent does not require the actual destruction of a substantial part of the group. Instead, even a single instance of one of the prohibited acts in the ICTR statute is sufficient, provided that the accused genuinely intends by that act to destroy at least a substantial part of the group.Footnote 97 The ICTY adopted the same approach to determining “genocidal intent”: the destruction of the group may constitute evidence of both the requisite intent and of the crime of genocide itself.Footnote 98
The behavior of ISIS fighters toward the Yazidi community manifested a truly genocidal intent. The atrocities against them were inspired by religious ideology. Numerous reports establish that ISIS fighters threatened to kill Yazidis if they did not convert to Islam. In a 2014 report, which was based on over 300 interviews with victims and eyewitnesses, the Independent International Commission of Inquiry on the Syrian Arab Republic (IICIS) concluded that ISIS's attacks on the Yazidi community as well as their public statements over social media expressed a denial of the Yazidis’ right to exist.Footnote 99 In its 2016 report, IICIS concluded that the ISIS fighters focused their attack on the Yazidis purely because of their identity as Yazidis. For instance, a Yazidi boy was taken and told by an ISIS commander, “even if you see your father, if he is still Yazidi, you must kill him.” The ISIS fighters called the Yazidi people “dirty Yazidi.”Footnote 100 In its 2015 report, the UNHCR stated that the pattern of attacks against the Yazidis proved the intent of ISIS to destroy them as a group, whose identity is based on its religious beliefs.Footnote 101
On May 29th, 2014, ISIS fighters entered local villages and began to execute the inhabitants, including women and young children, believing them to be Yazidis. According to survivors, the villagers were desperate to show that they were in fact Muslims. The ISIS fighters asked the victims to recite verses of the Quran. A group of fighters who did not understand Arabic killed 15 villagers, until an Iraqi fighter intervened to preventing further killings and explain to the others that the residents were Sunni Arabs.Footnote 102
Genocidal intention was clear. ISIS boasted about subjecting abducted Yazidi women and girls to sexual violence and slavery, seeking to legitimize these abhorrent and criminal practices according to their interpretation of Islam. After being captured, the Yazidi women were then divided according to the shariʿa among the fighters,Footnote 103 and then distributed as a part of ISIS salary for its fighters.Footnote 104 Based on evidence collected by many sources, the Yazidis suffered serious bodily or mental harm as a result of deliberate actions of ISIS that manifested an intent to destroy the Yazidi religious community. Yazidis were considered as infidels.Footnote 105 Under any of the various sources of international law, the militant group's conduct toward the them amounts to genocide.Footnote 106
