Jan Ferman: International, gov't, local coordination needed for Yezidis' justice

22-08-2018

Rudaw Research Center hosted the first International Conference on the Yezidi Genocide on August 15, 2018, in Erbil. On the sidelines, Rudaw's Dildar Herki spoke with Jan Ferman, secretary general, International Association of Democratic Lawyers (IADL), four years after ISIS began committing its atrocities against the Yezidi people in Shingal.

The IADL works closely as an NGO with UN bodies like ECOSOC and UNESCO. Ferman has particular experience with the Rwanda tribunals. He points out that evidence sharing between European and local law enforcement allowed justice to occur — coordination that has not coordinated between

'But part of the question now I think is to organize things in such a way in cooperation between international organizations and the local organizations to organize it in such a way that a concrete plan for an accountability process can be developed, that the available evidence can be processed in such a way that trials can be organized on the different possible levels,' he says.

Ferman argues 'all governments and all official bodies have the responsibility to bring perpetuators of genocide, crimes against humanity and war crimes to court, to try them and organize an accountability process.'

Rudaw: How could you make the Rwanda Crimes to be recognized as genocide?

Jan Ferman: I think what is important is that in the case of Rwanda where you know of course a very important and very large scale genocide happened. There was a process, an accountability process. Because I think without the accountability process there can be no truth, there can be no justice of course. In the case of Rwanda, complex interaction was set up between the special international courts, for one which was set up by the United Nations in Russia. The national Rwandan court, and also the European courts, in which I, in particular intervened who tried people perpetrators of the genocide who fled to Europe, trying to hide in Europe. So European courts, European investigators, European prosecutors played an important role in gathering evidence, bringing people to trial who were hiding in Europe. By doing so, also in the process of recognition of the fact that the genocide had happened.

The Rwandan court, the local court of course played an important role. Especially the Gacaca Court was set up, which actually was somewhere between a court and a truth commission which dealt with local cases, minor local responsibilities and yet had a very important role in bringing the justice and bringing the truth to the people on the local level. They dealt with the Rwandan case with more than 110,000 cases.

So were the people helpful in the collection of documents and providing information on how these crimes took place?

Yes, of course. And it was a complex process. The investigators of the international court conducted the investigations on the ground.

Christians have been submitted to acts of genocidal acts. Shabak, Kakai, all the groups have also been submitted to acts of genocide.

European investigators also conducted investigations in in order to conduct the trials in Europe and of course, the Rwandese, the local investigators, police, prosecution also played a role. It’s precisely because all of this information was finally combined and all of this information was cross checked and reinforced one the other, that I think the accountability process in Rwanda was conducted to good ends. And I think that is probably what is needed also in relation to the crimes conducted by ISIS. All available capacity, international, national has to be mobilized. Our capacity to conduct investigations and to prosecute and to bring to justice has to be mobilized and the cooperation of these different mechanisms has to be organized. I think it really needs a plan and a task force to set up that approach in order to get justice.

Okay, dear doctor. Let me ask about what has been done on an international level for the recognition of ISIS crimes against Yezidi Kurds as genocide? In your opinion, what is the difference between what happened in Rwanda and Shingal?

Well, first of all as far as the nature of the crimes are concerned, every situation of course has its particular circumstances. But it

Personally I think that some of the matters could be dealt with in the international criminal court because nor Iraq, nor Syria signed the Rome statute.

seems very clear to me and un-doubtable that it cannot be discussed that ISIS indeed committed genocidal crimes against the Yezidis but also against other communities. Christians have been submitted to acts of genocidal acts. Shabak, Kakai, all the groups have also been submitted to acts of genocide. I think it’s in line with the genocidal ideology, political ideology that ISIS has. So that is one point. The second point is that I think it is very necessary now to set up in relation to the situation in Iraq and the crimes committed by ISIS. Mechanisms that are tailored to the situation, because you can’t just transplant mechanisms from one situation to another, you need mechanisms that are tailored to the situation, but allow and effective collection of evidence regarding these crimes and an effective process of accountability.

Personally I think that some of the matters could be dealt with in the international criminal court because nor Iraq, nor Syria signed the Rome statute. Many citizens from countries that did sign the Rome statute participated in the crimes. But we all know that the process in the ICC, the International Criminal Court is a very heavy process and that anyhow the International Criminal Court will only look into a few cases and not in the full range of crimes.

Why have not there been any international steps [for the recognition of the crimes against Yezidis] — as the UN has issued some decisions which have not been implemented?

First of all I understand the necessity of the Yezidi people to have these factors recognized as a genocide, but on the other hand, it is my feeling that actually the political recognition that Yezidi people were submitted to a genocide, there’s little doubts that there is

I visited this area in 2017. T

political recognition for it. Indeed the United Nations, the Human Rights Council adopted a resolution urging the Security Council to refer the crimes committed by ISIS to the international criminal court. The problem here is not that much of a political recognition of the fact of genocide.

The problem is to try to put it in such a form that it can be tried in courts of justice. That is of course a different matter. I think the ICC could play a role there, but also European jurisdictions could play a role. We have a particular responsibility. Thousands of European citizens traveled to this area to destroy it, to commit genocide against the Yezidi people and others. So the European countries that allowed that have a particular responsibility. They should set up investigations and trials for genocide in European courts which is perfectly possible. I think also that the local courts have to play a role, that’s an obvious matter.

You have written a research on ISIS crimes against Yezidis, Christians, Shabaks and others which occurred in the Nineveh Plains. Can you tell us what the topics are about and how you have been able to obtain information in this regard?

The information came from people on the ground. Witnesses, people I met in the Human Rights Council in Geneva, people I’ve met during previous visits. I visited areas where the crimes had been committed in 2017

Were they all Yezidi, or you have also met Christians and Shabaks as well?

Yes, I visited this area in 2017. The next point now is to set up a task force that can collect all these materials, that can put them in

I think the international community has done very little, not enough that is clear.

format where they can be submitted to a courts of law, if, in Europe on an international level, I think it all needs to be combined. The evidence, the materials which are available on the ground, which I know are available because I’ve met the organizations, I’ve met the victims, so the evidence, the information is available. It now has to processed in such a way that it can be a basis of trial in courts of law on an international level, on a European level, on a local level. I think that is the task that is ahead now

You are a lawyer for and secretary general of the International Association of Democratic Lawyers. Have you informed the international community that those girls and women who had been captured by ISIS were later turned into slaves, and that they are now living in a dire condition in tents after they were rescued while international organizations are unaware of them ?

Yes, of course. Conferences have been organized in the Human Rights Council and I think the question of enslavement of Yezidi

It is essential that the local people and the victims stay on top of the process and keep control of the process. It’s not something that should be imposed from outside.

women and Yezidi children, the abduction of Yezidi women and Yezidi children will be an absolutely essential part in judicial discussions on whether genocide has been committed. I think it’s a very important part because there is a physical elimination of the men and of course there is the act of enslavement against women and children.

So have international organizations done enough to heal these people physically and psychologically?

I think the international community has done very little, not enough that is clear. But part of the question now I think is to organize things in such a way in cooperation between international organizations and the local organizations to organize it in such a way that a concrete plan for an accountability process can be developed, that the available evidence can be processed in such a way that trials can be organized on the different possible levels. That the evidence can be organized in such a way investigative teams, international and national can start cooperating to prepare the trials and then I think rather quickly we can get to a result.

Whose responsibility is this? Who shall prepare concrete plans and help them in this regard?

To be frankly speaking, first of all the authorities and the organizations in this part of the world should work together because it is

It’s obvious that the Iraqi government, like all of the governments in the world has the responsibility to facilitate this process, to organize it and to protect it in this way for future generations

important that such a plan is not imposed from outside but is a plan that is based on the realities on the ground. That is one. But two, of course, international advisors, international experts, international organizations should be involved to share the experience from other situations like Rwanda, or previously like South Africa. That experience should be brought in to benefit the local people or order to be able organize an accountability process. It is essential that the local people and the victims stay on top of the process and keep control of the process. It’s not something that should be imposed from outside.

Again, regarding your research, have you contacted the office which has been set up by KRG PM Nechirvan Barzani for rescuing Yezidi women and girls from ISIS? They have spent millions of dinars to pay for their freedom. Have you contacted them to know how these people were rescued?

Well actually I have contact with people on the floor working with this office and working with the other organizations that are working on this matter and I know the very important efforts has been made by the local authorities and many community based organizations and I think that effort precisely is the only possible starting point and basis for an accountability process. It should be of course supported by the international community. International experts should be helping that local process but I think the office set up by the prime minister and also the community organizations, because I think they play an important role, the community based organizations should be the basis, the starting point of such an accountability process.

What shall both the KRG and Iraqi government do for the international recognition of those crimes which were committed against Yezidis as genocide?

All government sand all official bodies have the responsibility to bring perpetuators of genocide, crimes against humanity and war

crimes to court, to try them and organize an accountability process. It’s obvious that the Iraqi government, like all of the governments in the world has the responsibility to facilitate this process, to organize it and to protect it in this way for future generations, because as I said previously, there can be no reconciliation and no stability in this society without the truth, without a process of truth, recognition and also accountability. It’s obvious that all governments and official bodies have full responsibility to cooperate in this and to mobilize and to organize the resources necessary to bring it to a good end. But the task is important.

Previous examples show that it’s a difficult matter, that it needs very careful process tailored to the concrete situation. It shows also that the local community in general after such events which completely disturb society, disturbs the normal functioning of society. It also needs the assistance of the international community to be able to bring it to a good end. I think the responsibility is to work together, to set up the process and to seek assistance from the international community to bring it to a good end.

How should the process of document collection be? Most ISIS militants have been killed or bombed. Their documents have been burnt due to bombardment, and sectarian militias have come to these areas. How can you collect these documents?

Well, I think that’s going to be one of the main points in setting up an accountability process. I’ve seen on the ground that many

The question of children that were born out of the rape of an enslaved woman is a matter that goes far beyond law.

different forces, many different kinds of organizations, officials, military organizations but also civil society organizations have been doing, have been collecting evidence. Especially for the community organizations with very little means and with a methodology which is not a professional methodology. If you look at the situation in Rwanda where the authorities were absent during large periods of the genocide because the old authorities collapsed and anyhow organized the genocide and the new authorities were not yet fully established.

Community organizations played also an essential role there in gathering evidence. The point now is how to collect all of these pieces of evidence scattered over a whole series of organizations, official organizations, military organizations, international organizations, community organizations. The challenge now is to see how that is gathered and processed with one single professional methodology. And that is going to be the challenge I think for the next year or two because it’s only on that basis. Only in the second stage, can you bring it to a court of law.

Have you also reported about those girls who became slaves and later got pregnant and gave birth? Now they are rescued along with their children. Have you worked on the future for these children whose fathers are deceased ISIS militants? As you know, the community here approaches these people with caution. Have you - as the West or an international, democratic lawyer – collected any information in this regard?

First of all this is not already a matter of law of course. The question of children that were born out of the rape of an enslaved woman is a matter that goes far beyond law. I think the guidelines should be nevertheless the international convention on the rights of children. These children should benefit from the same rights, from the same possibilities as any other child because of course neither

First of all, it is the responsibility of anybody in the area, whether it’s the Iraqi forces, the Peshmerga or anybody else to secure the evidence.

them, neither their mothers bear any responsibility in what happened. The child and the mother should not be punished even on a social level for what they were subjected to. Essential there is that the communities but also the official bodies and the international community clearly lay the responsibilities. The responsibilities are not with these mothers and these children. The responsibility is with those who organize the enslavement. That is the starting point.

But secondly, very often this kind of situation needs also the very important work of reconciliation between the communities and within the communities because this kind of situation or these kinds of crimes also provoke deep wounds within the community. So the communities will have to overcome this. I would say, my recommendation would be, just accept these children as if they were children from your community because that’s the only way to get over this.

Peshmerga forces liberated Shingal and its surrounding areas from ISIS but were later controlled by the Iraqi Army and Hashd al-Shaabi paramilitary forces. These places include tens of mass graves which are under threat because of the presence of these militias. What shall be done in order to preserve the remains?

First of all, it is the responsibility of anybody in the area, whether it’s the Iraqi forces, the Peshmerga or anybody else to secure the evidence. It’s created a political situation that is extremely complex. There is a lot of division and unfortunately sometimes a lot of fighting. I think the most important point is that all these forces should be united in one single process of the recognition of the fact of genocide and recognition of the necessity of accountability for that genocide. Now, I would say that I’m worried for example, by the fact that up until now that’s the case in Iraq but also in Europe that prosecutions are almost exclusively based on membership of terrorist organizations.

If you do that, it means that people will never have answers to the question, “What happened to my kin, what happened to my community?” because prosecuting on the basis of membership with a terrorist organization just has to tell that the person is a member of the organization. I think setting up a process that takes fully into account the scope of the crimes, the nature of the crimes that were committed, and working with all these different forces in order to convince them of the necessity of an accountability process where the full scope of the genocide crimes and crimes against humanity is debated is a precondition to convince them to protect the communities and to protect the evidence.