Published:March 26, 2021
By Dr Bojan Gavrilovic, Head of Program for Rights and Justice, Jiyan Foundation for Human Rights
Survivors Of ISIL Crimes In Iraq – One Step Closer To Reparations
On March 1st 2021 members of the Iraqi Parliament passed the Yazidi Women Survivors Law. This law, based on the initial bill submitted by the Iraqi presidency in March 2019, will deliver long-awaited relief not only to Yazidi women but also to other survivors belonging to communities targeted by the self-declared Islamic State of Iraq and the Levant (ISIL).
Since 2003, Iraq has suffered internecine conflict and state collapse, degrading a once rich cradle of ancient ethno-religions and cultures. During the ISIL created conflict in Iraq, at least 30,000 civilians were killed, 55,000 injured and more than 3 million were displaced. Minority communities including Christians, Yazidis, Sabean-Mandaeans, Turkmen, Kaka’i, and Shabaks were particularly targeted and faced existential threats. Moreover, ISIL waged a genocidal campaign against these minorities across the Sinjar region and the Nineveh plains seeking to erase their presence in Iraq altogether. The Yazidis were particularly targeted and decried by ISIL as devil-worshippers.
The Coalition for Just Reparations (C4JR), an alliance of 30 Iraqi NGOs calling for comprehensive reparations for civilian victims of atrocity crimes perpetrated during the ISIL conflict in Iraq, took the lead in reviving the public debate on reparations and improving the initial bill. To that end C4JR composed a Draft Law of its own and carried out an intensive advocacy campaign via traditional and online media. It also conducted a series of virtual and in-person briefings for Iraqi MPs and other officials, raised awareness on the importance of addressing consequences of wartime sexual violence in Iraq and abroad, and collaborated with the UN Assistance Mission for Iraq (UNAMI) and the International Organization for Migration (IOM) to promote survivor-friendly solutions. The main aim of C4JR was to include, to the greatest extent possible, international standards and best practices in the forthcoming legislation.
A milestone, not only for the Middle East
The final outcome, though not ideal, does provide a sound basis for the important work ahead: repairing the harm done to survivors of ISIL crimes in Iraq. Perhaps the greatest flaw of this law is not addressing the contentious and sensitive issue of children born of sexual violence. Similarly, the bill excluded men and boys exposed to sexual violence, as well as survivors belonging to some minorities targeted by Daesh such as Kakai but also both Shia and Sunni Arabs.
This being said, the law does introduce some groundbreaking advances. It defines conflict related sexual violence by covering a large spectrum of forms of sexual violence. Despite its name, the law applies to women and girls from Shabak, Turkmen and Christian communities. The law also applies to all Yazidi, Turkmen, Shabak and Christian survivors (men and women) of mass killings and captured Yazidi children (art 2).
The indicated beneficiaries shall, in addition to a monthly salary (Art. 6.1) be provided with rehabilitation services (Art. 4 and 5). Furthermore, beneficiaries are to be granted a residential plot of land with a real estate loan or a free housing unit (Art. 6.2), are to be exempted from the age requirement if they choose to return to study (Art. 6.3) and will be given a priority in public employment (Art. 6.4). Moreover, the law explicitly recognizes that ISIL committed genocide and crimes against humanity against Yazidis, Turkmen, Christian and Shabak minority groups (Art. 7).
The third of August 3 of each year has been designated as a national day to reveal the crimes committed against the Yazidis and other minorities during which commemorative events, including monuments, statues and exhibitions, will be organized (Art. 8).
The legislator clearly excluded a possibility of granting a general or special amnesty for crimes of kidnapping and captivity of Yazidis (Art. 9.1).
Finally, the law explicitly stipulated that survivors will remain eligible to receive compensation in accordance with other applicable laws or decisions of international bodies (Art. 13).
A special body “general directorate” is to be established to facilitate implementation of this law, prevent recurrence of the violations (Art. 4.2) and search for kidnapped Yazidis, Turkmen Christian and Shabak men, women and children whose fate is still unknown (Art. 5.7). A special committee will also be formed to consider claims within 90 days from their submission. There is also a first and second instance appeal process (Art. 10).
Potential problems with implementation
Reparations programs have normally been established long after criminal justice mechanisms, if at all. Though the importance of justice for the wellbeing of survivors is beyond dispute, it was criminal justice only that was pursued during or in aftermath of an armed conflict. Survivors of Balkan wars, for instance, never received reparative justice though a wide-ranging administrative reparations scheme. Adoption of the Yazidi law is therefore well-timed as UNITAD continues its important work on collecting, preserving and storing evidence of atrocity crimes committed by ISIL in Iraq and national criminal justice mechanism is yet to be established.
It is important to note that all survivors belonging to the groups indicated in the new law are eligible to apply for and enjoy the benefits as stipulated, irrespective of their current country of residence. Therefore, it is to be expected that those living abroad, including Germany, shall be interested to realize their right to reparations under this law. Of particular relevance here is financial compensation (monthly salary). However, the law indicates that General Directorate will work on facilitating access to health and psychological rehabilitation services inside and outside Iraq (Art. 5.6).
It is still not clear how the Iraqi authorities will regulate the application process and transfer the benefits to survivors residing abroad. One could also appeal to host countries to do their part in facilitating access to benefits for eligible survivors.
Many procedural issues vital for the proper implementation of the Yazidi Law (i.e. evidentiary standard for verifying survivors’ claims, necessary documents, burden of proof etc.) are still not clear. Also, building up know-how, infrastructure (opening outreach offices to receive claims as well as health centres to provide mental health and psychosocial support as well as medical services) in the areas still ravaged by war will certainly represent a huge challenge. Finally, Iraq needs to allocate sufficient funding for this purpose in its annual budget.
Considering Iraq’s persistent budget deficits, inability to provide regular salaries for civil servants and chronic failure to implement enacted legislation, the prospects of individual survivors actually receiving reparative services stipulated in the law look rather bleak.
Though taking over financing the reparations by the international community might be seen by some as a viable alternative to state funding, this would largely defeat the purpose of the entire endeavor. Providing reparations for atrocity crimes is an obligation of states who either committed these crimes or failed to prevent them. On the other hand, while it is not realistic or even preferable to ask a well-off states to finance reparations for survivors of ISIL, technical assistance and transfer of relevant knowledge in providing highly specialized services and lessons learned from dealing with the past would be more than welcome. At a minimum, public recognition of Iraq’s efforts to provide relief beyond mere compensation would be a good first step.
 United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL is an independent, impartial investigative team, mandated by the United Nations Security Council to support efforts to hold ISIL members accountable for their crimes