Implementing the Yazidi Survivors Law: Listen to C4JR in conversation with Saib Khidir here, in Arabic. This episode is also available on Spotify:
Episode Description:
Mr. Saib Khidir is an Iraqi lawyer, politician and former member of parliament who played a key role in enacting the landmark Yazidi Survivors Law (YSL). The Coalition for Just Reparations’ Wansa Shamoon sat down with Mr. Khidir to discuss his experience as an Iraqi MP and member of the legal committee representing the interests of the Yazidi community, for his thoughts on progress and developments since.
Transcript:
Introduction:
Welcome to the Coalition for Just Reparation’s podcast series, “More Than Ink on Paper”, through which we’ll platform relevant voices around the Yazidi Survivors Law, which has too often also been referred to as “ink on paper” by some survivors of ISIS crimes to voice their doubts about the government’s commitment to delivering long-awaited reparations guaranteed under the legislation. We’ll be speaking to those working to ensure that this is not the case, and take a sweeping look at issues of transitional justice and accountability in Iraq, through the process of seeking to implement the law.
Wansa Shamoon: Mr. Saib Khidir is an Iraqi lawyer, politician and former parliament member, representing the interests of the Yazidi community. C4JR spoke with Mr. Khidir because of his central role in enacting the landmark Yazidi Survivors Law (YSL) as an Iraqi MP and member of the legal committee.
Mr. Khidir, we know that the first draft of the YSL was submitted to the parliament by the Iraqi presidency in April 2019 for consideration. This served as an initial spark for interventions of different civil society actors, including the Coalition for Just Reparations (C4JR), as they identified a window of opportunity for making a meaningful contribution to enacting the YSL. At the beginning of 2020, the outbreak of the coronavirus pandemic disturbed plans and the timeline for YSL enactment. Despite this, and one might say against the odds, the YSL was enacted on March 1, 2021. We know for a fact that you pushed for adoption on several occasions before that. Mr. Khidir, can you explain how it came to be that such a law was enacted in its current form? What was the biggest challenge, and are you satisfied with the final text?
Saib: Thank you very much for your and your colleague’s patience, and to C4JR and the Jiyan Foundation for Human Rights, thank you for participating in the Yazidi Survivors Law issue. Discussing the Yazidi Survivors Law is a lengthy conversation, as this law, as you mentioned, is one of the essential laws not only in Iraq but also in the broader region, whether in the Arab world or the Middle East, to use the expression (the Arab homeland and neighbouring regional countries). For the first time, this law addresses and deals with victims of sexual violence during conflicts (and this is, of course, a precedent in the discussion or enactment of such a law). The YSL, in general, is the result of a societal and individual need. After the events of ISIS and the genocide that occurred against the Yazidis, many issues emerged as social necessities and vital requirements to address the impact suffered by our people, including Yazidis, Christians, Shabaks, Turkmen, and other components. There was a necessity to enact laws that addressed the violations that occurred. After 2003, the parliament passed laws compensating prisoners, the Prisoners’ Foundation, the rights of the politically dismissed, etc., as compensation for individuals affected by the events of 2003. These laws were called transitional justice laws. After 2014, there was a need for some matters related to the Yazidi community and the victims‘ families to be addressed.
This law is not a result of that period. As far as I remember, there were discussions during the time of Dr. Barham Salih and, before that, during the time of Mr. Fuad Masum. There were visits and efforts to highlight its necessity. However, no one in Parliament adopted this initiative because, as you know, Parliament is a legislative institution. Therefore, nothing could be achieved without one taking the initiative and taking it upon themselves. The genocide against the Yazidis occurred in 2014, and from 2014 to 2018, there was an opportunity to legislate laws. However, there was either a weakness in the representation of Yazidis or minorities, or there was a weakness in highlighting the needs of minorities.
When I came into parliament in 2018-2019, I conducted an inventory to identify the needs that could be addressed for minorities, specifically for the Yazidis and their critical issues at that time. We recognised that there were fundamental issues, including the survivors, compensation, and displaced persons. I prioritised these matters as a method to address the problems. The issue of survivors and compensating the victims of ISIS crimes was placed on my agenda. It is worth noting here that we do not have a law to prosecute ISIS members, and I will address this matter later as I also proposed such a law.
The discussions on the first draft of the Yazidi Survivors Law took place. At that time, the President of the Republic, Dr. Barham Salih, had the constitutional right to propose draft laws along with the Cabinet. There are two mechanisms for legislating laws—either the government proposes a bill or a proposal is submitted by the MPs (25 deputies, I believe). However, the law was proposed by the executive authority represented by the presidency. After it reached us from the presidency (I, in turn, did not intervene in the issue of the law coming from the presidency, although of course, there were meetings in the presidency regarding it), I was waiting for the law to reach the parliament to quietly perform my role as a deputy and contribute to this law, drawing on the suffering of the Yazidi community or minorities to ensure it is reflected in it.
Therefore, I avoided some issues related to the presidency until the law reached the parliament. The Yazidi Survivors Law came to parliament, and then I, as a representative of the Yazidis, took charge of working on this law. Indeed, I included many issues related to the Yazidi genocide in it. For example, recognising the Yazidi genocide. I also made amendments pertaining to the affairs of Yazidis and minorities in the draft that came from the Prime Minister’s office. For instance, there was no article addressing the issue of abducted women. I added a straightforward article, and today, the Cabinet and the General Directorate for Survivors Affairs, responsible for searching for the abducted, are working on it. Previously, before the law was enacted, the search for kidnapped individuals was done through a committee. However, as you know, the working mechanism of a committee differs from the mechanism when there is a law. When we have a legal text, the government and all its institutions are committed to it. As a lawyer, I know this, so I added a section on ‘searching for the abducted in coordination with internal and external entities.’ Also, regarding the tasks of the Directorate, since the functions were previously not clearly defined, I added clauses specifying the tasks of the Directorate, such as providing support and protection to survivors, coordinating with relevant entities, and conducting awareness campaigns, among others.
The Yazidi Survivors Law was initially limited to four or five articles. Still, I expanded it to five articles by adding issues related to compensation, auditing cases related to mass graves, and a crucial point regarding the recognition of the Yazidi genocide. There was no previous recognition of what happened to the Yazidis and minorities as genocide. There was a government decision, I believe, in 2015 from the Cabinet, and a decision from Parliament. However, these decisions did not reach the level of law and did not have legal force.
When the Yazidi Survivors Law came (the version that came from the presidency), it contained an article stating that the crimes that happened to the survivors are considered genocide, but that the survivors differ from the community, and there should be a specific designation. However, I modified this text to include the Yazidi, Christian, Shabak, and Turkmen communities. This provided clear and explicit recognition of genocide. However, there might be legal ignorance or lack of awareness, and some may see a reduction in the significance of genocide in this issue. In contrast, others believe that this article should have been more comprehensive. But we state in the law that the absolute law applies unless evidence indicates a restriction. Therefore, the absolute in this article is clear, and it is the recognition of genocide.
I will address the last part of your question regarding satisfaction with the law or obstacles. Indeed, there were many obstacles, and let’s talk frankly. There were Yazidi obstacles (opposition from some Yazidis), non-Yazidi obstacles, and political obstacles from within the Parliament.
For Yazidi obstacles: Some Yazidis believed that specific issues would not be passed, and indeed, some of them used it as a pretext for political criticism. Some thought this work wouldn’t be attributed to Saib Khidir or any specific person, and the law wouldn’t be enacted. I recall receiving sharp messages from some who believed they had political orientations and were against the legislation of the law for specific, unrealistic reasons. For example, there was the promotion of the idea of converting children (Daesh children), even though this provision was in the draft that came from the Presidency, but it was later removed. Initially, there were objections from some Yazidis, either out of ignorance or for political reasons, but I ignored these objections. Unfortunately, the issue evolved into another obstruction through opposing legal projects. When there are similar laws, both are stopped for further study. This was a significant obstacle, as when the Draft law was about to have its second reading, another law proposal came, adding another hindrance. We tried repeatedly with the other party that proposed a similar law to defer their proposal until the legislation of the Yazidi Survivors Law, but it was unsuccessful. However, I insisted on proceeding with the Yazidi Survivors Law, and with the grace of God, it succeeded. Of course, there were challenges related to consensus in the Parliament. I only had one seat, so could not pass issues without consensus, but I insisted on the fundamentals of this law. There was an idea to change the title of the law, but I insisted on keeping the title because it is related to me and the Yazidis.
As for satisfaction with the current text, we can begin by saying that there is never complete satisfaction with any legal text because there are some disturbances and obstacles in every law. However, overall, this law addresses some issues and needs of society. It was possible to add some other provisions to it. Still, we dealt with this law under challenging circumstances (coronavirus, early elections, October events) and in a turbulent atmosphere, which led to attempts to postpone it to a later stage. Therefore, it had to be passed to avoid that. Every law has its characteristics and gaps, so with implementation and application, we can find a mechanism for amendment.
Wansa: More precisely, can you tell us more about how this law, from addressing the plight of Yazidis only and the need to try to remedy, to the extent possible, wrongs and harms inflicted upon individuals, families and the entire community, came to include survivors from additional minority groups targeted by ISIL (Turkmen, Christian and Shabak) whereas some (for example, Kakai) were left out? In addition, it kept the reference to Yazidis in the name, though making all other reparative measures available to other groups. Why is that?
Saib: About the name (title), I insisted that the name should be specific to the Yazidis for certain considerations. The first consideration is that the central process of genocide was the kidnapping and enslavement of Yazidi women. Secondly, this is the first time in the modern history of Iraq (since the establishment of the Iraqi state) that such violations against the Yazidis have occurred, although similar events may have happened in the past. The majority of survivors are Yazidi women, as compared to other non-Yazidi survivors. Yazidi women constitute the vast majority, and for this reason, I decided that the current title should serve as a moral acknowledgement for Yazidi survivors. There were attempts to change the title to Law for Iraqi Survivors or another title that includes all the components covered by it.
However, out of pride and respect for all minorities whose rights are also protected by the law, I insisted on giving an advantage to Yazidi survivors. For example, in academic assessments, there is the first successful student and the first successful student with honours. Here, we name things according to their designations to give an advantage. Just as there is an advantage in positives, there is also an advantage in negatives or tragedies. The Yazidis, Assyrians, and others have suffered a lot, so there is nothing wrong with naming this law in this way. I agree with you regarding the neglect of the Kakais and not including them in the law. I acknowledge that they should have been included. Still, the truth is that there was no discussion on this matter among the relevant parties, such as organisations and the Coalition for Just Reparations. No one addressed the Kakai component. We did not leave the text open to include all components; we specifically addressed minorities, Yazidis, Christians, Turkmen, and Shabak.
No one from the Kakais, whether individuals, representatives, or parties, demanded the mandatory inclusion of Kakais in this law. The Kakais have the right to be included in this law if an opportunity for amendment arises.
Wansa: What spoke against an administrative reparations program covering all those harmed by ISIL, irrespective of their religious or ethnic affiliation? Was this even considered an option during the discussions in the parliament?
Saib: The compensation department did not open in Sinjar until 2019, when I opened a section for compensations, and they have now started receiving applications. I agree or believe that the compensation process has not been completed until now, but this remains the government’s responsibility, which is obligated to direct the Compensation Committee to consider the compensation requests from Sinjar and the Nineveh Plain. They have yet to be compensated, even though the committee has reviewed the applications. As you know, the committee reviews applications that are less than 30 million IQD and those above 30 million IQD, so this is also an important aspect that the government must consider and follow up on, whether by your coalition or by representatives of the Yazidi community.
Wansa: Mr. Khidir, C4JR have met with you and other MPs in the phase preceding the YSL enactment and discussed different drafts in a consultation workshop with Iraqi officials and survivors. One thing that came up in the initial YSL drafts, the cut-off date for eligibility of survivors belonging to indicated groups, was that kidnapping must have taken place on or after June 10, 2014. The enacted version has pushed this cut-off date to August 4, 2014. This may have a detrimental consequence for some survivors, particularly non-Yazidi, who were harmed before August 4, 2014, notably during or after the capture of Mosul and Tal Afar by ISIL insurgents completed during the first half of June 2014. Why did such change occur at the last minute, and why?
Saib: This change is related to the definition process outlined in Article 1 (no change occurred). However, I can say that it was necessary to have discussions involving representatives of other components (Christians, Turkmen, Shabak), as they had their representatives in Parliament. We believed that August 3rd was the date when the genocide against the Yazidis took place, and there was no genocide before that date. However, after obtaining more information, we better understand what happened in Tal Afar and elsewhere before August 3rd.
Here, I emphasise the legislative institutions, political blocs, and perspectives. We also believed this law should not be widely publicised or granted absolute authority. If there were vague texts in this law, it could include everyone, making it difficult to say whether the law applies to minorities or non-minorities. This could potentially lead to the inclusion of ISIS members, making the law ineffective in addressing the specific needs of minorities. Designating June 10th as the date should have been discussed by representatives of minority components in Parliament. We held meetings and discussions with deputies and committees, addressing this law with the Women’s Affairs Committee, the Martyrs Committee, and the Legal Committee, without noticing these gaps. As a representative of the Yazidis, I look at the law in terms of meeting the needs of my community. After discussing these points with them, I tried to include all the points received from my community in the law. As for other components, there should have been discussions by representatives of those components (non-Yazidis) regarding this matter. I believe that there are proposed amendments to address this issue.
Wansa: Mr. Khidir, one of the general remarks coming from the executive branch of government is that the YSL has been drafted and enacted hastily and that, due to that fact, it is poorly worded, which, in turn, hinders its effective implementation. How would you respond to this criticism as an Iraqi politician and former MP heavily involved in drafting the law?
Saib: I have previously mentioned that every law can contain different perspectives. Today, I can illustrate in the Iraqi national civil law enacted in 1953 by Mr. Sanhuri, an Egyptian legal scholar, many texts that did not align with the Iraqi context or failed to address certain civil issues in Iraq. This is also the case with the Law of Criminal Procedure enacted in the 1970s and the Penal Code enacted in recent decades. Therefore, every law can potentially include various viewpoints, opinions, and gaps.
In a political atmosphere like the one witnessed during the fourth electoral session of Parliament, the COVID-19 pandemic, early elections, and the October protests, where governments changed, we are talking about a period during which three governments with different perspectives, ministers, and opinions came into power. This law was legislated six months before the elections in 2021, and if it had not been legislated during that period, it would have remained without legislation.
Now, through your platform, I call on the deputies representing minorities in Parliament, whether within the quota seats or as independents. I hope that during this parliamentary session, they can legislate one law for minorities, not just for Yazidis. It is difficult to legislate laws despite having pending and important laws concerning all minorities, including the law for the trial of ISIS elements and laws related to Christians. During that period, I was a member of the Legal Committee and had the strength and influence to help my community, especially regarding the Survivors Law. Otherwise, this law would not have been enacted then or in the future. There was also international support, and we managed to form a lobby.
The urgency mentioned by the government came from the presidency, and I believe committees at the presidency read this law. The draft law was returned to the government, and there were only two comments from the government. We studied it with various entities like the Legal Committee, the Martyrs Committee, and the Women’s Committee. Also, as organisations, you received all opinions, but my goal was to push for the legislation of this law, as I believed it would never be legislated in future sessions. Today, we have a parliament that has not issued a single decision regarding minorities despite having Christian and Yazidi deputies. No decision has been issued for minorities in the budget or general laws. Therefore, as a legal expert, every law may have the possibility of containing gaps, but these can be addressed during the implementation through amendment processes.
Wansa: Mr. Khidir, as someone who participated in debates on certain key sections and terms in the law, maybe you can shed light on the following: was the intention of the lawmaker to differentiate between eligibility of juvenile female survivors under 15 years of age from the Yazidi and non-Yazidi communities? To put it clearer, was it intended to include all female survivors (from Yazidi, Turkmen, Christian and Shabak components) that suffered crimes indicated in the YSL during abduction by ISIL irrespective of their age (below and above 18 years at the moment of violation)?Also, did the lawmakers intend to differentiate between detention and kidnapping? More precisely, was it intended that one, to be considered eligible, needed to be moved from their houses or places of residence to be considered kidnapped? Or, is mere deprivation of liberty (without necessarily moving the person physically from the place of original detention), provided that they were subjected to indicated crimes, sufficient?
Saib: The law is clear, or at least has a kind of clarity, regarding the definition of Survivor in Article 1. The Survivor is defined as anyone who has suffered harm, enslavement, abduction, or coercion by the terrorist organisation ISIS after August 3. As for children, they are distinguished by adding Yazidi children to the definition. Therefore, this text includes all female survivors who fall under the wording of Article 1 of the law, which defines a survivor as any woman who has been kidnapped and enslaved by ISIS after the third of August 2014. The law does not specify a certain age for the term girl. If the girl is 5, 6, or 10 years old, excluding the children for whom a separate category was created (male children), Article 1 applies to females, regardless of whether their age is 12, 14, 16, 20, or any other age. Therefore, this provision (Article 1) applies to them.
As for the other part related to children, we added the provision concerning the inclusion of Yazidi children. Based on my understanding from your perspective, there are some children who are not covered, such as Turkmen children. However, I believe the article related to children also applies to them. If not, legal consultation can be sought to address this issue. If it is not resolved, there could be a project to amend the law to include these children if there is a provision in the law hindering their inclusion.
In my opinion, abduction is an act carried out by terrorist groups (we did not mention in the law the terms detention, arrest, or any other phrase). We have explicitly mentioned the clear phrase abduction. Therefore, there must be intent behind the act of abduction by terrorist groups. Thus, all the incidents that befell the Yazidis, Shabak, Christians, or Turkmen had the goal of abduction. This provision is clear. The distinction remains that there should be a distinction between these acts. There should be an act of aggression because, after the abduction, it is expected that there will be an assault or sexual slavery. This has been mentioned in Article 1, which states that the survivor is anyone who has suffered harm, enslavement, abduction, violation, or sale by terrorist groups. I believe that Article 1 clearly defines the eligibility criteria explicitly and comprehensively.
Wansa: The YSL envisages many reparative measures; it goes beyond financial compensation to include rehabilitation, land, housing, public employment, education, recognition of genocide and crimes against humanity, search for those missing, return of the remains to the families, memorialisation, criminal justice. What would be, in your own opinion, the most important reparative measures from those indicated, and what is the anticipated timeline for YSL implementation?
Saib: It is worth noting that what is being achieved today through the YSL is significant. As I mentioned earlier, out of 3,000 survivors (as announced), approximately 1,700 survivors receive monthly salaries. According to a statement from the Directorate a few days ago on social media, all survivors in Iraq have been included in the entitlement to the monthly salary under the Yazidi Survivors Law. Other benefits, such as land, remain, and there will undoubtedly be land distribution this year due to continuous monitoring. Other benefits are also included in the law, and based on my knowledge, there has been work on this matter. However, I believe the elections for the Provincial Councils may have caused some delays, but work on it will resume soon, according to my information.
There is also the 2% employment quota, which the Federal Service Council is obliged by this legal text. Here lies the importance of Yazidi community representatives reminding the Service Council of these provisions, and there must be follow-up by the representatives. As for health rehabilitation, work is ongoing, and there have been sessions with international centres to support the directorate’s work to initiate the health rehabilitation process.
In my opinion, the implementation of the Yazidi Survivors Law is progressing at a better pace than other laws related to Yazidis and minorities. The Directorate is making significant efforts, so I believe the law is being implemented well.
Wansa: What concerns rehabilitation services? The law stipulates that rehabilitation centres are to be established within but also outside of Iraq to provide services addressing the needs of survivors. What was intended at the legislative phase, including the above section on opening rehabilitation centres outside Iraq, and how realistic is that?
Saib: I cannot speak on behalf of the Directorate or express their views since a Director-General and her staff can answer this question. Regarding the law and our legislation, the law requires the establishment of health and psychological rehabilitation centres for survivors, whether inside or outside Iraq. This depends on communications and follow-ups by the Government and the directorate itself. Based on my knowledge, the Directorate has ongoing work regarding health rehabilitation services. However, the actual status can be inquired directly from the Directorate, including this provision in the law, which aims to address the psychological effects of survivors.
Wansa: Finally, Mr. Khidir, what is the most pressing issue that must be done currently to deliver on the promises written down in the YSL? Also, where do you see YSL implementation five years from now?
Saib: In my opinion, the priority after the enactment of the Yazidi Survivors Law in Parliament, where I proposed a draft law named Trial of ISIS Elements, is to address the legal needs of the Yazidi community within the legislative framework. After legislating the Yazidi Survivors Law, it became evident that there is a need for a legal process of trials because many ISIS elements and terrorists are being prosecuted under terrorism and penal laws. There is plenty of evidence available to international organisations like the United Nations. Still, they are not handed over to the Iraqi government, citing the lack of a specific law in Iraq that prosecutes genocide. Now that we have a legal description of genocide that has been recognised and the Higher Judicial Council has affirmed it, I proposed a draft law titled Trial of ISIS Elements. The draft law was reviewed in the Legal Committee, where I was a member, and it received approval from relevant authorities. However, elections took place, and this is the priority that I believe representatives of minorities in Parliament should strive for—to legislate a law for the trial of ISIS elements to implement the part related to the Yazidi genocide.
Regarding my vision for the next five years, I am pleased that this law is bearing fruit. Previously, we used to hear from survivors complaining about the difficulties of living and the deteriorating economic situation. However, I, along with others who contributed to the legislation of this law, am proud that many of our women and girls have improved their economic situation. There is implementation of this law, but as you know, Iraq faces bureaucracy, obstacles, and political influences that may affect a specific file, especially concerning the Yazidis and other minorities. However, overall, I see that this law is being implemented well.
I am very happy that I had a clear and significant impact on this law, which has benefited many communities affected by ISIS. Today, they receive decent salaries that contribute to reducing some of their hardships. However, it is essential to note that no amount of money can compensate for the harm they suffered, whether it be through assault, rape, or slavery that our daughters and sisters endured. Nevertheless, this is just a tiny part of redress by the government. As a representative of the Yazidis during that period, I believe this is a good law, and I see that its implementation will be very good after five years.
The Coalition for Just Reparations (C4JR) is an alliance of Iraqi CSOs, helping survivors of the ISIS conflict in Iraq realise their right to reparations, as we seek the full implementation of the 2021 Yazidi Survivors Law (YSL); a comprehensive state-funded reparation program providing reparations if you are a member of one of the following groups: Adult and minor female survivors of ISIS captivity from the Yazidi, Shabak, Christian or Turkmen communities, male Yazidis who were abducted by ISIS when they were under the age of 18 at the time of abduction, and all persons from the Yazidi, Shabak, Christian or Turkmen communities whom ISIS abducted and personally survived a specific incident of ISIS mass killing. Applications are made to the General Directorate for Survivors’ Affairs, a government body recently established in Iraq under the auspices of the federal Ministry for Labour and Social Affairs and verified by the eight-member committee of representatives of different Iraqi institutions.
