By Campbell MacDiarmid

LALISH, Iraqi Kurdistan – The former chief prosecutor of the International Criminal Court (ICC) has proposed a new legal argument which could allow the court to investigate ISIS war crimes against the Yezidis, despite Iraq not being a member state of the court.

Luis Moreno-Ocampo, an Argentine lawyer and former chief prosecutor of the ICC, has lent his support for the recognition of a genocide against the Yezidis by ISIS.

Visiting the Yezidi holy site of Lalish on Tuesday, Moreno-Ocampo told media that while a potential war crimes prosecution at the ICC potentially offered a way to bring ISIS leaders to justice, this wouldn’t address all of the Yezidi victims’ needs.

“Victims need truth, victims need reparation, victims need justice and victims need the security that the crimes will not be repeated,” he said.

Priority should be given to rescuing those Yezidi women and children still held in captivity and gathering more information with a view to eventually opening a case, he continued.

Iraq is not a member of the International Criminal Court. In lieu of it joining, under normal rules, jurisdiction to try ISIS members would be established if the United Nations Security Council passed a resolution.

However, Moreno-Ocampo proposed a third way by which jurisdiction could be established. He said he believes that the capture of a foreign ISIS leader from a country which is signatory to the Rome Statute would provide necessary grounds to open a war crimes prosecution. “The court is starting to say that the court will intervene when crimes are committed by nationals of state parties,” he said.

Kerry Propper, a defender of genocide victims from New York, explained further. “The strategy is to identify foreigners who are leading ISIL in order to gain jurisdiction is a new strategy,” he said, using ISIL, an alternative acronym for ISIS. “We’re claiming that the ICC would then have legal jurisdiction. This is a new legal argument.”

Moreno-Ocampo’s visit was organized by Yazda and the Free Yezidi Foundation, two Yezidi support organizations.

Yazda co-founder Murad Ismael said they hoped this third potential avenue could one day open the way to a case at the ICC. “We will be focusing on making that connection between the leadership of ISIL, their citizenship and the systematic killing of Yezidis,” he said. “If you make that link you have the legal grounds [for a case at the ICC].”

Before any of this could happen, evidence of a standard which could be presented to a court would need to be gathered. The establishment of a Yezidi Truth Commission would be the most effective way to do this, Moreno-Ocampo argued. Numerous such commissions exist worldwide, including the one that was established following Rwanda’s genocide.

Earlier in March, a report published by the UN Office of the High Commissioner for Human Rights (OHCHR) suggested that ISIS atrocities may constitute war crimes, crimes against humanity and genocide; the three most serious international crimes. According to the report, the pattern of attacks against the Yezidis “pointed to the intent of ISIL to destroy the Yezidi as a group,” which “strongly suggests” that ISIL may have perpetrated genocide.

The OHCHR report encouraged the Iraqi government to join the ICC and called on the UN Security Council to consider referring the situation in Iraq to the ICC.

The ICC was formed in 1998 with the intention of bringing to justice the perpetrators of genocide, war crimes and crimes against humanity.