Towards a More Meaningful Transitional Justice Approach for the Yazidi Diaspora in Europe

Flavia Togni 23 Dec 2022
 

Keywords: Yazidi, Genocide, Foreign Terrorist Fighters (FTFs), ISIS, Diaspora, Counter-Terrorism, Transitional Justice, Prosecutions, Europe

Introduction

In the aftermath of the 2014 genocide against the Yazidis by ISIS, discussions regarding justice have focussed predominantly on prosecutions of foreign terrorist fighters (FTFs) in Europe, the situation of the Yazidis in Iraq, and the approaches to transitional justice that have been developed in the region. Moving away from this focus, this perspective addresses what justice currently looks like for the Yazidis in Europe. As part of a research project conducted at the Vrije Universiteit of Amsterdam, nine with members of the Yazidi diaspora in Europe have revealed disconnects, blind spots, and gridlocks that are causing tension in the European justice framework currently in place.[1] Some key lessons and recommendations advocating for a more comprehensive and victim-centered transitional justice approach in Europe, are shared below.

The Yazidi Genocide

August 3, 2014 has etched itself into the memory of every Yazidi, an ethnoreligious minority from Sinjar, in northern Iraq. On that date, ISIS invaded the Yazidis’ homeland and began a gruesome campaign of mass violence. Roughly 10,000 Yazidis have been killed and enslaved, and the community has been devastated. Today, over 200,000 Yazidis are still internally displaced across Iraq’s northern Kurdistan region and more than 2,700 women and children remain in ISIS captivity. The crimes committed by ISIS have been recognised by the UN Independent International Commission of Inquiry on the Syrian Arab Republic as constituting crimes of genocide in line with Article II of the 1948 Genocide Convention, as well as crimes against humanity and war crimes as enumerated in Article 7(1) and Article 8 of the Rome Statue.

Current Justice Developments

In the eight years since the genocide, practical efforts aimed at directly providing justice to Yazidi victims have been scarce. This lack of practical action is surprising, particularly as several European countries have become hosts to both victims and perpetrators. It is estimated that since 2014, more than 120,000 Yazidis have sought asylum in Europe, and that approximately 2,500 ISIS fighters have returned.

The scant action regarding justice for the Yazidis is also at odds with the official recognition by several European governments of the genocide and their expressed commitment to deliver justice to the Yazidis, including the European Parliament in 2016, the Belgian and Dutch parliaments in 2021, and Luxembourg’s Chamber of Deputies in 2022. The political outrage against the actions of ISIS has also led governments outside of Europe to recognise the genocide, such as the United States House of Representatives in 2016, and the Australian Parliament in 2018. However, apart from the stated promise of justice, critics and the Yazidi community have raised the question of the relevance of such recognitions as it remains unclear what practical consequences these parliamentary motions in fact have.

Two prosecutions in Europe have constituted noteworthy exceptions to the scarcity of action. The first is the hallmark conviction delivered in July 2022 by the Higher Regional Court of Hamburg against ISIS member and German national Jalda A. for war crimes, crimes against humanity, and aiding and abetting genocide through the abuse of a Yazidi woman. This case marked the second-ever verdict regarding the Yazidi genocide reached under the principle of universal jurisdiction. It was preceded in November 2021 by a sentencing by the Regional Court of Frankfurt of ISIS member and Iraqi national Taha A-J. to lifelong imprisonment under charges of genocide.

Criminal prosecutions such as these are embedded in a broader, ongoing debate in Europe regarding the general question of accountability for ISIS fighters, focusing, among other things on cumulative charging and the repatriation of ISIS fighters with European citizenship.

Towards Yazidis’ Sense of Security and Justice

Missing in these discussions is a more comprehensive victim-centered frame — one that goes beyond a victim-centered approach in criminal prosecutions — specifically determining what meaningful justice would look like if it were defined by victims themselves, as well as prioritising the views and needs of particular ethnic groups or conflict-driven diasporas. Instead, relatively little is understood about justice from the European Yazidi diaspora’s perspective and the community’s own views and demands regarding the return of ISIS fighters to Europe in the wake of the genocide, among other examples.

Owing to the transnational dynamic of the Yazidi genocide, it is crucial to consider the current insecurities of the Yazidi diaspora in Europe and related challenges in delivering justice to the community. Since 2014, the Yazidi population in Europe has grown substantially, such that it is even more in the interest of policy makers, governments, academics, and civil society to carefully listen to the diaspora’s perceptions of security challenges and of justice in Europe.

To arrive at the comprehensive victim-centered approach needed, it is important to understand the security challenges currently faced by Yazidis in Europe and how those challenges influence the ways in which they perceive justice for the genocide.

Yazidis’ Experiences in Europe

Interviewed Yazidis spoke of everyday insecurity, sharing an understanding of the concept that remains underexplored in contemporary security dialogues — namely, one that does not focus on physical violence, but on invisible forms of insecurity. While there may not be violence against the Yazidis’ bodily integrity in Europe in a conventional sense, they continue to face noteworthy that are mentioned below.

For example, members of the Yazidi European diaspora community experience multiple forms of discrimination and racism and are often cautious about revealing their Yazidi identity. In many ways, the discrimination Yazidis are facing in Europe is a reflection of the daily, micro-experiences of stigma that Yazidis have had to navigate back in Iraq. Until today, they are a strongly misunderstood and othered minority community in their own home country, rendering them continuously insecure in Iraq. In Europe, their sense of safety is negatively impacted by the arrival of ISIS fighters in European countries and the knowledge that often, fighters have either escaped prosecution, received low sentences due to a number of evidentiary and charging challenges, and eventually re-entered society. The diaspora’s security issues are further compounded as they perceive themselves to be unable to speak out freely about the genocide. When discussing some ongoing consequences of the genocide, for example the women and girls still in ISIS captivity, they describe receiving online threats from various actors and groups in Europe and Iraq who sympathise with ISIS’ treatment of the Yazidis. These threats jeopardise their sense of safety in Europe and makes them fear for their families, who largely remain internally displaced in Iraq.

The crux of the matter is that Yazidis in Europe do not reflect on their security-related experiences by looking back at a period of insecurity and violence during the 2014 genocide, but instead by highlighting how they continue to grapple with these issues today in their everyday lives. Understanding their prevailing insecurities is important because they directly connect to the ways in which the Yazidi diaspora perceives current efforts towards justice.

Blind Spots of Current Approaches to Justice

To recap, there is a disparity between the declared commitments of governments to deliver justice to the Yazidis, the (minimal) actions that have resulted from these statements, and the day-to-day experiences of the insecurities of the Yazidis on the ground in Europe. Different actors, including European governments, the criminal justice sector, policymakers, and the Yazidi community itself are talking past each other, because a comprehensive and meaningful victim-centered approach is missing in current efforts toward justice. The introduction of a wide-ranging transitional justice strategy can serve as a way out of this gridlock.

In recent years, transitional justice has become both a key concept and practice in navigating post-conflict settings. It offers a range of mechanisms to support societies as they deal with the legacy of mass violence, and aim to ensure accountability and justice. The four main pillars of transitional justice are criminal prosecution, truth-seeking, reparations, and institutional and legal reform; their implementation is usually focused on the geographic area in which serious human rights violations have occurred.

Consequently, transitional justice as a field has traditionally entailed engaging communities after a specific timeframe of violence and injustice has come to a distinct end. But this is a narrow interpretation of violence that ignores its more mundane forms, and marginalises violations of the right to non-discrimination of victims and other ongoing experiences of insecurity. In this vein, by focusing exclusively on the crimes committed by ISIS in 2014, transitional justice mechanisms have rendered more recent forms of insecurity peripheral.

Overcoming these blind spots would render transitional justice a welcome concept, allowing Europe to address the prevailing insecurity and justice needs of the Yazidi diaspora more effectively. Today, much of the Yazidi community is disappointed with the treatment of returning ISIS fighters and dissatisfied with the justice approaches that have been used so far. What is instead needed is a nuanced and comprehensively victim-centered transitional justice approach, one that does not only respond to the crimes of 2014, but also pays the necessary attention to the community’s ongoing insecurities.

Recommendations Moving Forward

To summarise, as long as general justice efforts do not incorporate a sensitivity to current insecurities faced by the Yazidis — and ultimately aim to ease them — any attempt to achieve justice will continue to be out of touch with the Yazidis’ realities.

Consideration for the Yazidi population in Europe must include much more than bringing them in as witnesses for a criminal trial and being considerate about the traumas they re-live while providing testimony. A truly victim-centered lens, as part of a broader transitional justice approach, requires including the security and justice sentiments and needs of ISIS victims so that the victims play a central role. The Yazidi community should be supported in freely speaking their truth, allowed to shape the narrative of their persecution with their testimonies, and be consulted regarding their ideas for accountability mechanisms and justice interventions. None of these are possible until the Yazidis feel safe and protected, including outside of the courtroom. But it is precisely in navigating everyday life or offering critical opinions that they have a sense of danger and precarity.

Not only justice departments, but immigration services and other authorities as well, need to be more sensitive to the Yazidis’ reality. In the case of immigration, case workers must be carefully selected and trained to ensure that Yazidis undergoing an asylum procedure feel safe speaking about their experiences of ongoing insecurity, both in Europe and Iraq.

As mentioned above, Yazidis’ insecurities in Europe must be understood as a continuation of their daily, discriminatory experiences in Iraq. Therefore, when assessing cases in Europe, immigration officers need to rethink the adequacy of the lens applied to arrive at an asylum decision. Currently, a lot of Yazidis’ asylum applications are turned down, justified by the false belief that northern Iraq is safe for them again. This is the result of immigration services also using an inappropriate definition of safety, ignoring the everyday insecurities that Yazidis still navigate in Iraq, and inadvertently treating Yazidis as they would the general Iraqi public, instead of as a persecuted minority group that needs to be given priority.

Moving forward, it is important to rethink the dominant security discourse, as it focuses on the crimes of 2014 alone without acknowledging everyday insecurities as they are experienced and defined by the relevant community. Bridging this gap is possible, but doing so requires more nuanced research and cooperation across disciplines and agencies, for example, the Yazidi community in Europe, immigration departments, criminal justice systems, counter-terrorism task forces, fact-finding missions, governments, and the general population. Clear policy changes that develop a comprehensive victim-centered transitional justice approach, invest in the security for the Yazidis, and introduce better protection mechanisms for the diaspora in Europe are desperately needed.

[1] Interviews: As part of a previous research conducted for the L.L.M Master’s programme Law and Politics of International Security, nine interviews were conducted with Yazidis in the European diaspora between April and May 2022, and three interviews were conducted with practitioners working in the field of justice for the Yazidis. Therefore, the points of view presented for the purpose of this perspective piece are based on interviews conducted for a previously written study by the author. See Togni, ‘Justice in the Face of Injustice: 2,917 Reasons and More for Rethinking the Concept of Transitional Justice for the Yazidi Community: A Study of the Perceptions of Security and Justice Among the Yazidi Diaspora in Europe’ (2022) Vrije Universiteit Amsterdam.


Flavia Togni is an independent researcher as well as Programme Lead for the Academy at the Atlantic Forum. She graduated cum laude with an International Security LL.M. from Vrije Universiteit Amsterdam, and holds a Master of Science (MSc, cum laude) in Conflict Resolution and Governance from the University of Amsterdam. Her research interests include foreign fighters, victim-centered transitional justice approaches, and accountability for mass atrocities in terrorism-related contexts.

LinkedIn: https://www.linkedin.com/in/flavia-togni-07b624180

Email: flavia@etogni.ch

Related Readings:

Al-Dayel, N., and Mumford, A. ISIS and Their Use of Slavery. Perspective, The International Centre for Counter-Terrorism, 27 January 2020

Paulussen, P. ISIS and Sexual Terrorism: Scope, Challenges, and the (Mis)Use of the Label. Perspective, The International Centre for Counter-Terrorism, 27 January 2021

Mehra, T., Bringing (Foreign) Terrorist Fighters to Justice in a Post-ISIS Landscape Part II: Prosecution by Foreign National Courts. Perspective, The International Centre for Counter-Terrorism, 12 January 2018.

Choblet, J. Courtroom or stage? Performance vs. a fair trial in the Paris attacks case. Perspective, The International Centre for Counter-Terrorism, 25 March 2022

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