Communication to the ICC Prosecutor Pursuant to Article 15 of
the Rome Statute Requesting a Preliminary Examination into the
Situation of:
Gender-Based Persecution and Torture as Crimes Against
Humanity and War Crimes Committed by the Islamic State of
Iraq and the Levant (ISIL) in Iraq

i

 Submitted on November 8, 2017
by
The Human Rights and Gender Justice (HRGJ) Clinic of the
City University of New York (CUNY) School of Law
MADRE
The Organization of Women’s Freedom in Iraq (OWFI)

ii

 TABLE OF CONTENTS

I . EXECUTIVE SUMMARY ................................................................................................ 1
II . EXPERTISE AND INTEREST ........................................................................................ 5 
III . UNDERLYING FACTS .................................................................................................. 7 
A.  The Rise of ISIS ..................................................................................................... 7 
1.  From Al-Qaida of Iraq to ISIS .................................................................... 8 
2.  Foreign Fighters and ISIS’s Growth ........................................................... 9 
B.  ISIS Bureaucracy and Command Structure ......................................................... 10 
1.  ISIS’s Leadership Structure ...................................................................... 10 
2.  ISIS’s Administrative Bureaucracy .......................................................... 11 
a.  Executive Authority ......................................................................... 11 
b.  Sub-councils..................................................................................... 12 
c.  Local Authorities.............................................................................. 13 
C.  ISIS Forces in Iraq Commit Acts of Gender-Based Persecution, including
Torture, Killing and Sexual Violence .............................................................. 14 
1.  ISIS Publicly Defends and Promotes Gender-Based Persecution ............ 14 
2.  ISIS Commits Torture and Murder as a Form of Gender-Based
Persecution .............................................................................................. 19 
a.  Targeting women and girls for noncompliance with ISIS’
prescribed gender norms ................................................................ 19 
i.

Targeting women and girls for failure to adhere
to dress and movement restrictions .............................. 19 

ii.

Targeting women for engaging in professional
occupations .................................................................. 20 

iii.

Targeting women on the basis of real or
perceived sexual orientation ........................................ 24 
iii

 b.  Targeting men and boys for non-compliance with ISIS’
prescribed gender norms ................................................................ 25 
i.

Targeting men and boys for failure to adhere to
dress and appearance requirements .............................. 25 

ii.

Targeting men and boys on the basis of real or
perceived sexual orientation ........................................ 26 

D.  ISIS Forces in Iraq Committed the War Crime of Torture Motivated by
Discrimination Based on Gender including Non-Conforming Sexual
Orientation and Gender Identity ...................................................................... 33 
1.  ISIS Publicly Defends and Promotes Gender-Based Persecution ............ 34 
2.  ISIS Tortures People on the Basis of Gender, Sexual Orientation,
and Gender Identity................................................................................. 35 
3.  Element of “Discrimination of Any Kind” for the War Crime of
Torture Includes Discrimination Based on Gender, Including
Sexual Orientation and Gender Identity ................................................. 35 
a.  Customary International Law Recognizes Sexual Orientation
and Gender Identity as Protected Classes ...................................... 38 
IV . ALLEGED OFFENSES ................................................................................................. 44 
A.  The Standard for Initiating a Preliminary Examination into the GenderBased Crimes Committed by ISIS Has Been Met ........................................... 44 
B.  There Is a Reasonable Basis to Believe That Foreign Fighters in ISIS
Have Committed Crimes within the Jurisdiction of the Court ........................ 45 
1.  The Court has Subject Matter Jurisdiction over Gender-Based
Crimes ISIS Has Committed in Iraq ....................................................... 46 
a.  Crimes against humanity .................................................................. 46 
i.

 ISIS’s gender-based crimes in Iraq are part of
ISIS’s widespread and systematic attack on the
civilian population ....................................................... 46 

ii.

ISIS fighters have the requisite mens rea ..................... 48 

iv

 iii.

ISIS’s persecutory conduct has caused severe
deprivations of fundamental rights .............................. 49 

iv.

ISIS fighters persecute their victims based on
their membership in a group defined by their
gender, targeting those who do not conform with
ISIS’s strict gender regulations on social
behavior........................................................................ 49 

v.

ISIS’s persecutory conduct was committed in
connection with other international crimes
recognized under the Rome Statute ............................. 54 

b.  War crimes ....................................................................................... 55 
2.  The Court has Personal Jurisdiction over Foreign Fighters in ISIS
Operating in Iraq ..................................................................................... 59 
a.  ISIS has a policy of recruiting foreign fighters ................................ 59 
b.  Foreign fighters occupy leadership roles in ISIS ............................. 61 
c.  There is a reasonable basis to believe that foreign fighters in
ISIS leadership roles are responsible for gender-based
crimes in Iraq, on the basis of command or superior
responsibility under Rome Statute Article 28 ................................ 63 
d.  There is a reasonable basis to believe that foreign fighters in
leadership roles are individually liable for gender-based
crimes under Article 25(3)(a) of the Rome Statute ........................ 66 
C.  A Case Against ISIS for its Gender-Based Crimes in Iraq Would Be
Admissible ....................................................................................................... 69 
D.  The Court’s Prosecution of ISIS’s Gender-Based Crimes in Iraq Accords
with the Complementarity Principle ................................................................ 70 
1.  States that may have jurisdiction over the perpetrators have failed
to act ........................................................................................................ 71 

v

 2.  States that may have jurisdiction over the perpetrators are unable
to genuinely conduct the proceedings ..................................................... 73 
a.  Inability of Iraq ................................................................................ 74 
b.  Inability of Tunisia........................................................................... 76 
c.  Inability of Jordan ............................................................................ 77 
d.  Inability of Libya ............................................................................. 79 
E.  ISIS’s Gender-Based Crimes Are of Sufficient Gravity To Render the
Cases Admissible ............................................................................................. 80 
V. INTERESTS OF JUSTICE .............................................................................................. 83 
VI. CONCLUSION ................................................................................................................ 84 

vi

 I. EXECUTIVE SUMMARY
1. The Human Rights and Gender Justice Clinic of the City University of New York
(CUNY) School of Law (“HRGJ Clinic” or “HRGJ”), MADRE, and the Organization of
Women’s Freedom in Iraq (“OWFI”)—jointly file this communication pursuant to Article
15 of the Rome Statute.1 On the basis of the information set forth in this communication,
we urge the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”)
to launch an investigation into gender-based crimes committed by foreign fighters in the
Islamic State of Iraq and al-Sham/Greater Syria (“ISIS,” also known as “ISIL,” “Daesh,”
or “IS”) against civilians in Iraq.
2. In 2014, ISIS took control of large swaths of territory in Iraq. Since then, ISIS forces
have imposed a reign of terror, perpetrating heinous gender-based crimes against civilians
on a staggering scale. Human rights bodies and advocates have extensive documentation
of ISIS’s practice of persecuting individuals because their gender or gender expression
does not conform with the militia’s strict gender norms.2 ISIS assaults against women
based on their gender may be the most notorious of such crimes, involving the systematic
subjugation of thousands of women, including young girls, to “sexual slavery, rape and
other forms of sexual and gender-based violence.”3 ISIS fighters have beaten women
doctors and nurses for removing their niqab and gloves in order to perform their medical
duties.4 They have executed women as punishment for serving as politicians or in other
professional roles.5 They issue death warrants against men and women alike on the basis

1

Two additional organizations, one local and one international, also join this petition but have chosen to remain
anonymous for safety reasons.
2
See, e.g. Luisa Dietrich & Simone E. Carter, Oxfam, Gender and Conflict Analysis in ISIS Affected
Communities of Iraq, at 5 (May 30, 2017) (“Under the ISIS occupation, study participants experienced the
imposition of a set of radicalised gender norms, which included the strict separation of women from unrelated
men in public spaces, as well as rules about attire and daily practices that were enforced by brutal means.”); Lisa
Davis, Women Confronting ISIL: Protecting Women’s Rights in the Context of Conflict, 22 Sw. J. Int’l L. 27
(2016).
3
Office of The Prosecutor, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda,
on the Alleged crimes committed by ISIS, (April 8, 2015).
4
See e.g., Nawzat Shamdeen, Veils, Gloves and Violence New Extremist Rules See Women Disappear from
Mosul’s Streets, NIQASH (Aug. 24, 2014).
5
UN News Centre , ISIL Unlawful Shari’a Courts’ Meting Out Monstrous Punishments, UN Warns (January 20,
2015) (“Educated, professional women, particularly women who had run as candidates in elections for public
office seem to be particularly at risk.”); U.N. Office of the High Commissioner for Human Rights (OHCHR) &
U.N. Mission Assistance Mission for Iraq (UNAMI), Report on the Protection of Civilians in Armed Conflict in
Iraq: 6 July–10 September 2014, (2014) (documenting cases of targeted assassinations of female professionals);
MADRE, The Wrong Kind of Woman: A Timeline of ISIS Killings Due to Gender Expression, (May 3, 2017),

 of gender behavior including their real or perceived sexual orientation.6 These atrocities
have garnered condemnation the world over,7 and have been well-documented by
individual victims and the perpetrators themselves on social media,8 by civil society
actors,9 in news reporting and documentaries,10 and by international efforts including the
Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of
Persons Responsible for the Most Serious Crimes under International Law Committed in
the Syrian Arab Republic (“the Mechanism”).11
3. By early 2015, a chorus of voices across the international community had implored the
OTP to act. In March of that year, Prosecutor Bensouda recognized that the atrocities
allegedly committed by ISIS “undoubtedly constitute serious crimes of concern to the
international community and threaten the peace, security and well-being of the region,
and the world.”12 However, she observed that ISIS is “primarily led by nationals of Iraq
and Syria.” Because neither Syria nor Iraq is party to the Rome Statute, she further

https://www.madre.org/press-publications/human-rights-report/wrong-kind-woman-timeline-isis-killings-duegender-expression.
6
Jessica Stern, OutRight International, Remarks to the U.N. Security Council (Aug. 24, 2015) (“In addition to
men perceived as gay, trans-identified people and lesbians are among those who have been raped and killed.”),
available at https://www.outrightinternational.org/content/jessica-sterns-remarks-historic-un-briefing-lgbtpeople-focuses-persecution-and-killings; MADRE: The Wrong Kind of Woman, supra, note 5; Human Rights
Watch (HRW), World Report 2016: Iraq (2016) (“ISIS repeatedly executed men accused of homosexual
conduct, although Iraqi law does not criminalize homosexual conduct.”).
7
See, e.g., United Nations, Fight against Sexual Violence in Conflict Reaches ‘New Juncture’, Security Council
Told, U.N. Doc SC/11862 (April 15, 2015); HRW, Iraq: Women Suffer Under ISIS (April 5, 2016); U.N.
Human Rights Council, Annual Report. 53, U.N. Doc. A/72/53, at 4, 228 (June 23, 2017). Human Rights
Committee, Concluding Observations on the fifth periodic report of Iraq, U.N. Doc. CCPR/C/IRQ/C/5;
CEDAW, Concluding Observations on the combined fourth to sixth periodic reports of Iraq, U.N. Doc.
CEDAW/C/IRQ/4-6 (March 10, 2014); U.N. Security Council, Security Council Res. 2299, U.N. Doc. S
/Res/2299 (July 25, 2016); Security Council, Security Council Res. 2367, U.N. Doc. S /Res/2367 (July 14,
2017); U.N. Security Council, Security Council Res. 2368, U.N. Doc. S /Res/2368 (July 20, 2017).
8
See e.g. Office of The Prosecutor (OTP), Statement of the Prosecutor of the International Criminal Court,
Fatou Bensouda, on the Alleged Crimes Committed by ISIS, (April 8, 2015). (“Some of these individuals may
have been involved in the commission of crimes against humanity and war crimes. A few have publicised their
heinous acts through social media.”).
9
See e.g., Human Rights Watch: World Report Iraq, supra, note 6; Minority Rights Group International, No
Place to Turn: Violence Against Women in the Iraq Conflict, February 2015.
10
Frontline, Escaping ISIS (May 15, 2015); Ahlulbayt: Documentaries, ISIS: Sex Slaves, (June 14, 2016).
11
See, U.N. General Assembly, International, Impartial and Independent Mechanisms to Assist in the
Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law
Committed in the Syrian Arab Republic since March 2011, U.N. General Assembly Res. A/71/L.48, at 4 (Dec.
19, 2016) (establishing the independent mechanism (“the Mechanism”) “to collect, consolidate, preserve and
analyse evidence of violations of international humanitarian law and human rights violations and abuses and to
prepare files in order to facilitate and expedite fair and independent criminal proceedings”). While the
Mechanism is focused on crimes occurring in the Syrian Arab Republic, given ISIS’s cross-border structure and
the fluid nature of its operations across the border between Iraq and Syria, the Mechanism’s work will
necessarily encompass evidence relevant to this investigation.
12
OTP, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the Alleged
Crimes Committed by ISIS, (April 8, 2015).

2

 concluded that “the jurisdictional basis for opening a preliminary examination into this
situation is too narrow at this stage.” 13 Nevertheless, Prosecutor Bensouda invited further
communications, underscoring that the OTP remained “open to receive additional
information which could provide further clarity on the positions occupied by State Party
nationals within the ISIS organisational hierarchy.”
4. Prosecutor Bensouda also underscored the responsibility of the entire international
community in the face of such contempt for human life and dignity, stating, “I remain
profoundly concerned by this situation and I want to emphasise our collective duty as a
global community to respond to the plight of victims whose rights and dignity have been
violated.”14 The global community has failed, however, to honor its “collective duty” to
the thousands of civilian victims of ISIS’s systematic gender-based crimes. As the
information set forth in this communication makes clear, the States with jurisdiction to
prosecute ISIS members for these crimes have neither the will nor the capacity to do so.
Not one ISIS member has faced prosecution for the commission of gender-based crimes.
Meanwhile, ISIS continued and expanded its horrific campaign of gender-based
persecution, unfettered by any fear of penal consequences.
5. This impunity cannot stand. The complete lack of criminal accountability sends a clear
message to ISIS forces that there will be no repercussions for the widespread, directed,
and documented commission of barbarous acts of gender-based violence. It perpetuates a
vicious cycle of persecution as ISIS uses these very atrocities as a recruiting tool.15
Impunity threatens the international prohibition on gender-based persecution and calls
into question the efficacy of international criminal justice as a universal enterprise.
6. The ICC as an international body is best positioned to address the criminal responsibility
of ISIS members. This communication responds to the express invitation in Prosecutor
Bensouda’s March 2015 invitation to receive additional information. As set forth below,
there is a reasonable basis to conclude that ISIS members who are nationals of State
Parties to the Rome Statute are committing gender-based atrocities in Iraq.
7. First, there can be no dispute as to whether ISIS is committing gender-based crimes that
constitute gender-based persecution, torture and other international crimes under the
13

Id.
Rukmini Callimachi, ISIS Enshrines a Theology of Rape, N.Y. TIMES (Aug. 13, 2015).
15
Id.
14

3

 Rome Statute. The reported crimes are far from mere rumors. ISIS members commit
them openly and notoriously. As a self-styled sovereign State, ISIS’s formal, written
statements and policies reflect its systematic approach to gender-based persecution.
8. Second, the available evidence shows there is a reasonable basis to conclude these crimes
are being committed by State Party nationals in senior positions in ISIS’s hierarchy. ISIS
has always maintained a policy of recruiting State Party nationals in droves,16 including
nationals of Tunisia, Jordan, Libya, the United Kingdom, France, Germany, Belgium, the
Netherlands, and Australia. ISIS currently has over 5,000 foreign fighters from Tunisia
alone. As this communication demonstrates, State Party nationals occupy critical roles in
ISIS’s organization, including high-level positions that necessarily involve the [direction
and] implementation of ISIS’s official policies of gender-based persecution. These
foreign fighters are liable for ISIS’s gender-based crimes.
9. Article 7(1)(h) of the Rome Statue reflects the affirmative obligation of the international
community to end impunity for gender-based persecution. With no successful genderbased persecution prosecutions to date, that duty remains unfulfilled.17 While
international justice is stalled or absent, ISIS is institutionalizing a malicious legacy of
gender-based persecution that will set a dangerous precedent of impunity its victims and
the international community for generations to come. The time has come for the OTP to
act.
10. Article 8 of the Rome Statue gives the ICC jurisdiction over war crimes that are
committed as a large-scale plan or policy. War crimes include the crime of torture
committed for the purpose of discrimination based on gender, including sexual orientation
and gender identity.18 To date, there have been no successful international prosecutions
for the war crime of torture committed on the basis of gender discrimination.19
11. When evidence in this communication is cited to “Documentation,” as opposed to a
published article or report, this refers to human rights documentation gathered by Iraqi
16

U.N. Security Council, Letter dated 13 November 2014 from the Chair of the Security Council Committee
pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and
entities addressed to the President of the Security Council, U.N. Doc. S/2014/815, ¶ 11 (November 14, 2014).
17
Emily Chertoff, Prosecuting Gender Based Persecution: The Islamic State at the ICC, 126 YALE L. J. 1050,
1053, 1054 (2017).
18
See infra., Section IV(B)(1)(b), regarding elements of torture under Article 8(2)(c)(i)-4 of the Rome Statute.
19
Lisa Davis, Reimagining Justice for Gender Crimes at the Margins: New Legal Strategies for Prosecuting
ISIS Crimes Against Women and LGBTI Persons, 24 WM. & MARY J. WOMEN & L. 175 (forthcoming, 2018).

4

 human rights defenders operating inside and outside of ISIS-controlled territories. These
defenders, at great personal risk, document human rights violations including genderbased crimes committed by ISIS and other armed actors. They help unveil key
information about perpetrators and larger criminal networks. In concert with this work,
many documenters in Iraq also provide safe passage and shelter to those at imminent risk
of sexual slavery or death, including those living under ISIS-controlled or contested areas.
For safety reasons, the identification of these defenders and their organizations has been
omitted from this communication. Documentation is available through CUNY Law
School.

II. EXPERTISE AND INTEREST
12. MADRE is an international women’s human rights organization that partners with
community-based women’s groups worldwide facing war and disaster.20 MADRE was
founded in 1983 and supports community-based organizations in more than 25 countries,
directly impacting approximately 450,000 lives across the globe.21
13. In the mid-1990s, during the formation of the Rome Statute, MADRE provided fiscal
sponsorship to the Women’s Initiative on Gender Justice (formerly known as the
Women’s Caucus on Gender Justice), and hosted some of the earliest meetings of the
Women’s Initiative at its headquarters in New York. As part of the Women’s Initiative,
MADRE advocated for the codification of rape as a form of torture punishable under the
crimes against humanity, genocide and war crimes, and worked to address the genderrelated gaps in the draft of the Rome Statute. MADRE helped to provide delegations with
in-depth analysis and practical recommendations on gender-sensitive language for the
draft Statute on the basis of international law. As a result, the Women’s Initiative
successfully called on the drafters to abandon the “outrages to personal dignity” language,
and to broaden the category for sexual violence to not only include rape but also sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization and other
undefined forms of sexual violence, including substituting the word “sex” for “gender.”

20

See MADRE’s homepage for more information, available at https://www.madre.org.
Yanar Mohammed, Testimony to United States Congress, “Human Rights Violations Committed by the
Islamic State” (2015).
21

5

 14. MADRE advocates for human rights, calling on the international community to confront
violations of women’s rights by ISIS and other extremists. In August 2014, for example,
MADRE and the Women’s International League for Peace and Freedom (WILPF),
submitted a joint written statement to the UN Human Rights Council describing the
atrocities befalling women in Iraq at the hands of ISIS, and urged the UN General
Assembly to take action.22 From 2015 to 2017, MADRE, often in partnership with OWFI,
WILPF, and the HRGJ Clinic & Sorensen Center for International Peace and Justice at
CUNY Law School have organized four international women’s rights conferences known
as “Strategies for Change” convenings23 in Erbil, Iraq, Istanbul, Turkey, and Beirut
Lebanon, bringing together dozens of Syrian and/or Iraqi women’s rights advocates
working in the context of the current conflict to protect survivors and document human
rights abuses.24
15. The HRGJ Clinic (formerly the International Women’s Human Rights Clinic (IWHR)) of
CUNY Law School was founded in 1992 by Professors Rhonda Copelon and Celina
Romany as one of the first law school human rights clinics in the United States.25 Over
the last twenty years, the HRGJ Clinic has worked to integrate a gender perspective into
international human rights law and mechanisms. In particular, the HRGJ Clinic (then the
IWHR Clinic) played a significant role in the Women’s Caucus for Gender Justice at the
1997 Preparatory Committee for the Establishment of an International Criminal Court,
which worked to ensure that the Rome Statute codified sexual and gender crimes as
within its jurisdiction. The HRGJ Clinic served as Legal Secretariat to the Women's
Caucus, which convened international delegation of attorneys and advocates to bring a
gender perspective into the United Nations negotiations of the Rome Statute. During the
International Criminal Tribunal for Rwanda, HRGJ in collaboration with the Working
Group on Engendering the Rwanda Tribunal, the Center for Constitutional Rights, and
volunteers, also filed an amicus curiae brief appealing to the court Akayesu Case to call

22

U.N. General Assembly, Joint written statement submitted by MADRE, Women’s International League for
Peace and Freedom (WILPF), U.N. Doc. A/HRC/S-22/NGO/13 (August 29, 2014).
23
MADRE, Strategies for Change, (2015), https://www.madre.org/press-publications/statement/strategieschange; Women’s International League for Peace and Freedom, Strategies for change Conference, (2015)
http://wilpf.org/wp-content/uploads/2016/06/Strategies-for-Change-2015.pdf.
24
NGO Working Group on Women Peace and Security, Statement by Yanar Mohammed at the U.N. Security
Council open debate on Women, Peace and Security, (October 13, 2015)
http://www.womenpeacesecurity.org/resource/statement-unsc-wps-open-debate-october-2015/.
25
See CUNY Law School, HRGJ Clinic’s homepage for more information, available at
http://www.law.cuny.edu/academics/clinics/hrgj.html.

6

 upon the prosecutor to ensure the inclusion of rape in charges of genocide, as well as war
crimes and crimes against humanity.
16. In Iraq, the HRGJ Clinic promotes the rights, protection, and physical security of
marginalized Iraqis who are at risk of violence committed on the basis of gender. Clinic
students engage in litigation through the UN human rights mechanisms, collaborate with
UN Human Rights Experts, develop and submit expert testimony, train partner groups on
how to best identify and document cases of marginalized and at-risk Iraqis, and conduct
investigations on gender-based human rights abuses in Iraq.
17. OWFI is a pioneering Iraqi women’s organization dedicated to rebuilding Iraq on the
basis of secular democracy and human rights for all. OWFI has developed innovative
anti-violence and political empowerment strategies for women across Iraq. OWFI
advocates on behalf of women who are most marginalized, including those who are
incarcerated, widowed, displaced or battered. OWFI offers shelter and protection for
Iraqi women, investigates and reports on the status of women’s rights in Iraq, and
promotes a comprehensive campaign of advocating for Iraqi women’s rights.26
18. In Iraq, OWFI partners with MADRE to provide humanitarian aid, shelter and safe
passage to vulnerable individuals fleeing conflict-related gender-based violence,
including women survivors of ISIS sexual slavery.27 Together, MADRE, HRGJ, and
OWFI have documented a range of gender crimes committed by ISIS.28

III. UNDERLYING FACTS
A.

The Rise of ISIS

19. ISIS is a militant organization which has conquered territory in western Iraq, eastern
Syria, and Libya with the self-proclaimed goal of establishing and expanding a modern
caliphate.29 ISIS has intentionally developed many of the characteristics of a de facto

26

See OWFI’s homepage for more information, http://www.owfi.info/EN/.
See e.g. Vanessa Thevathasan, First Responders: Women’s Organizations Fighting Against Gender-Based
Violence in Iraq, The World Post (2014).
28
Lisa Davis, Women Confronting ISIL: Protecting Women’s Rights in the Context of Conflict, 22 Sw. J. Int’l L.
27 (2016).
29
See e.g. Zachary Laub, The Islamic State, Council on Foreign Relations, (Last updated August 10, 2016),
https://www.cfr.org/backgrounder/islamic-state; Stanford University, Mapping Militant Organizations: The
Islamic State, (April 14, 2017), http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/1.
27

7

 governmental authority: establishing administrative control through a complex
bureaucracy, creating and enforcing a strict legal and religious code, taxing the local
population, exerting control over the education system, and providing basic social
services.30 ISIS leverages that authority to impose strict gender regulations on social
behavior—torturing, killing and persecuting those who do not conform.
1.

From Al-Qaida of Iraq to ISIS

20. ISIS has its origins in the early 2000s, when Abu Musab al-Zarqawi began training
extremist militants, first under the name Jama’at al-Tawhid wa’al-Jihad (“JTJ”) and then,
after swearing fealty to Al Qaida, as Al Qaida in Iraq (“AQI”).31 During the 2003 Iraq
War, AQI orchestrated Al-Qaida-sponsored terrorist attacks and supported Al-Qaida’s
primary mission to expel foreign influence and establish a theocratic state.32 According
to the United Nations, this goal is “based on a widely repudiated misinterpretation of
religion.”33 Under pressure from U.S. and Iraqi forces, the group declined until 2011,
when it became involved in the Syrian Civil War.34
21. In 2013, the group changed its name to the Islamic State in Iraq and Syria (ISIS). AlQaida’s core leadership and several AQI officers disagreed over Al-Qaida’s principal
leader.35 AQI repudiated Al-Qaida’s governing paradigms, limited aspirational scope, and
its self-imposed tactical restraints in pursing Al-Qaida’s mission.36 Otherwise, the
underlying political ideology held by the two groups remained largely indistinguishable.37
Nevertheless, when AQI selected Ibrahim Awad Ibrahim al-Badri (now Abū Bakr alBaghdadi) as its unrivaled leader in February 2014 and reorganized under the ISIS
banner, Al-Qaida formally disassociated itself from AQI.38
22. In June 2014, al-Baghdadi declared himself “caliph” of ISIS, which then included an
amalgam of AQI veterans and Afghan terrorists active since the 1990s, and he renamed

30

See e.g. Christoph Günther and Tom Kaden, The Authority of the Islamic State, Max Planck Institute for
Social Anthropology Working Paper No. 169 (2016); Tim Arango, ISIS Transforming into Functioning State
that Uses Terror as Tool, N.Y. TIMES, (July 21, 2015).
31
Stanford University, supra, note 29.
32
U.N. Security Council: Letter, supra, note 16, (“ISIS is the direct descendent of AQI.”).
33
Id.
34
Stanford University, supra, note 29.
35
U.N. Security Council: Letter, supra, note 16, ¶ 11.
36
Id.
37
Id. ¶ 11.
38
Id. ¶¶ 11-12.

8

 this entity the “Islamic State”.39 Al-Baghdadi simultaneously claimed authority over the
entire Muslim world,40 seeking “a broader regional agenda” for the Islamic State than did
either Al-Qaida or its other spins-offs, and declared a caliphate.41 Al-Baghdadi’s caliphate
declaration encouraged Al-Qaida followers from around the world, particularly in regions
outside the Middle East, to rally around al-Baghdadi, and travel to ISIS-controlled areas
of Iraq and Syria.42
2.

Foreign Fighters and ISIS’s Growth

23. Foreign fighters have played a significant role throughout ISIS’s development. When Abu
Musab al-Zarqawi, himself a Jordanian, formed JTJ in Iraq, he brought with him foreign
fighters from Jordan, Syria, Afghanistan, Pakistan, and Kurdish regions.43 As the group
transitioned to become AQI, it continued that tradition, relying on smuggling networks in
Syria to coordinate the arrival of foreign fighters in Iraq. The Sinjar records, captured AlQaida documents, reveal that AQI relied on a large group of foreign fighters, primarily
coming from the Arabian Gulf and North Africa.44 Indeed, between August 2006 and
2007, foreign fighters were responsible for three-quarters of suicide bombings in Iraq.45
24. In ISIS under Al-Baghdadi’s leadership, foreign fighters remain crucial to the group’s
leadership structure and its continued unprecedented growth.46 After ISIS captured Mosul
in June 2014, the military victory “made movement between [the] Syrian Arab Republic
and Iraq easier,” and “facilitated the flow of foreign terrorist fighters.”47 ISIS actively
recruits foreign fighters, and increased those efforts in June 2014.48 To encourage
immigration, ISIS issued Internet guidelines that “clearly indicate ISIS’s awareness of the
techniques commonly used by [UN] Member States to identify foreign terrorist fighters,
39

Id. ¶ 12.
Id. ¶ 13.
41
Id. ¶ 7.
42
Id. ¶ 12.
43
Stanford University, supra, note 29.
44
Joseph Felter and Brian Fishman, Al Qaeda's Foreign Fighters in Iraq: A First Look at the Sinjar Records,
Combating Terrorism Center at West Point, at 8 (December 19, 2007).
45
Peter Bergen, Joseph Felter, Vahid Brown, and Jacob Shapiro (Edited by; Rep. Brian Fishman) Bombers,
Bank Accounts, & Bleedout: Al-Qa'ida's Road In and Out of Iraq. Combatting Terrorism Center at West Point
(July 2008).
46
U.N. Security Council: Letter, supra, note 16, ¶¶ 1, 11 (“Their funding and networks of foreign terrorist
fighters strengthen the transnational threat from the Al-Qaida movement.”); Id. ¶ 13 (“The third group consists
of foreign terrorist fighters drawn from 80 countries around the world, whose presence enabled ISIS to move
from an organization of a few hundred to the force of thousands it is today.”).
47
Id. ¶ 14
48
Karadshesh, Jomana, Jim Sciutto, and Laura Smith-Spark, How Foreign Fighters Are Swelling ISIS Ranks in
Startling Numbers, CNN, (September 14, 2014).
40

9

 as well as systemic shortfalls in existing measures to track their travel patterns” before
arriving in Iraq.49 In June 2014, The Soufan Group (“TSG”) identified approximately
12,000 ISIS foreign fighters from 81 countries.50 By December 2015, TSG calculated
that between 27,000 and 31,000 foreign fighters had traveled to Syria and Iraq from at
least 86 countries.51
B.

ISIS Bur eaucr acy and Command Str uctur e

25. After killing ISIS strategic commander Samir Abd Muhammad al-Khlifawi in early 2014,
Iraqi authorities recovered information detailing the group’s calculated plans for
controlling territory, as well as its precise organizational structure.52 ISIS structure
includes a military hierarchy, as well as an administrative bureaucracy that allowed it to
gain and maintain control over a vast expanse of territory. Since June 2014, under alBaghdadi’s leadership, ISIS acted swiftly to establish governmental control of areas it
seized from Iraq and Syria, declaring these regions part of a “caliphate.” ISIS’
implementation of a state-like bureaucracy has involved establishment of schools, court
systems, social services and local governance. Many of its top administrative posts are
occupied by foreign fighters.53
1.

ISIS’s Leadership Structure

26. ISIS is comprised of three primary groups.54 The first is its core leadership,
predominantly Iraqi, and headed by al-Baghdadi.55 The second group includes an
amalgam of Iraqi and Syrian fighters who pledged loyalty to al-Baghdadi and “engage in
military or administrative duties.”56 Foreign terrorist fighters from over 80 countries make
up al-Baghdadi’s third core group and were most influential in ISIS’s unprecedented

49

U.N. Security Council, Report of the Secretary-General on the threat posed by ISIS (Da’esh) to international
peace and security and the range of United Nations efforts in support of Member States in countering the threat,
U.N. Doc. S/2016/92, at 26 (January 29, 2016) (“The ISIS guidelines also include detailed information about the
most easily penetrable travel routes, those to avoid because of stepped-up controls and the best modes of travel
to be used to reach territories under its control.”).
50
The Soufan Group, Foreign Fighters: An Updated Assessment of the Flow of Foreign Fighters into Syria and
Iraq, (December 8, 2015).
51
Id.
52
Id. at 16; Christoph Reuter, Secret Files Reveal the Structure of Islamic State, Spiegel Online, (April 18,
2015).
53
Cameron Glenn, Al-Qaeda v ISIS: Leaders & Structure, Wilson Center, (September 28, 2015).
54
U.N. Security Council: Letter, supra, note 16, ¶ 13.
55
Id.
56
Id.

10

 expansion.57 To integrate nonnative fighters into the Islamic State, “[a] so-called
‘ministry’ is reportedly in charge of hosting, arming, training and ensuring the welfare of
foreign terrorist fighters.”58
2.

ISIS’s Administrative Bureaucracy

27. While ISIS is relatively decentralized, al-Baghdadi maintains a structured organization.59
ISIS leadership sets the aims and purpose of the group, which are implemented through a
hierarchical bureaucracy, but local commanders and other authorities retain discretion
over the manner in which these goals are carried out.60 Local “hisbah” forces, or morality
police, patrol on behalf of ISIS to enforce its radical ideology.61
a.

Executive Authority

28. Al-Baghdadi is the ultimate authority in ISIS, and has also named himself “caliph,”
claiming authority over Muslims worldwide.62 He has two chief deputies, generally
former senior Iraqi Army officers, who supervise Iraqi and Syrian operations
respectively.63 The deputy in charge of Iraq is reportedly Abu Fatima al-Jaheishi (also
known as Ni’ma Abd Nayef al-Jabouri), who succeeded Abu Muslim al-Turkmani after
the latter was killed in a U.S. airstrike in August 2015.64 The deputy of Iraq serves as the
governor general of ISIS’s territories in Iraq, overseeing the local governors and councils
and acting as a political envoy.65 Though al-Baghdadi and his deputies set general
operating guidelines, ISIS commanders “have significant autonomy to run their own
operations in Iraq and Syria.”66
29. Under al-Baghdadi and his two deputies are various councils and committees, the leaders
of which form a cabinet. One of these bodies is the Shura Council, which oversees affairs

57

Id.
Id. ¶ 17.
59
Id. ¶ 15
60
Id.
61
Id. ¶ 17.
62
Id. ¶ 13.
63
Id. ¶ 16.
64
Abu Fatima al-Jaheishi, Counter Extremism Project, https://www.counterextremism.com/extremists/abufatima-al-jaheishi.
65
Glenn, supra, note 53.
66
Eric Schmitt and Ben Hubbard, ISIS Leader Takes Steps to Ensure Group’s Survival, N.Y. TIMES, (July 20,
2015).
58

11

 of state and includes ministers of war, finance and religious affairs among others.67 The
Shura Council is responsible for relaying al-Baghdadi’s orders and has the authority to
depose al-Baghdadi for deviating from ISIS doctrine.68
30. A parallel legislative body, the “Sharia Council”, is charged with ensuring compliance
with an extremist interpretation of Islam.69 This Council ensures party discipline,
establishes rules and penalties for their infringement, and supervises ISIS’ police and selfappointed courts.70 Al-Baghdadi supervises and gives orders to both councils.71
Sub-councils
31. Ministry-like sub-councils implement the councils’ directives. The Islamic State
“mimic[s] a civil administration by appointing judicial, internal security and
communications officers” and coordinates its Iraqi territory through wilayas, or “Iraqi
governorates under ISI[S] control.”72 This structure facilitates al-Baghdadi’s delegation of
military authority to ISIS fighters who control local towns and cities within each wilaya.
Such councils include the following:
32. Military Council: The Military Council manages its vast military operations in Iraq and
elsewhere, overseeing an expansion and defending conquered territory.73
33. Financial Council: The Financial Council “oversees oil and weapons sales and other
revenue.”74
34. Medical Personnel: ISIS trains foreign terrorist fighters in medicine. The Islamic State
wants “to ensure a steady supply of qualified medical personnel in the future as well as
expand[] and enhance[] the current medical services from a professional as well as
Islamic point of view.”75 To achieve this, ISIS has “opened the Medical College in arRaqqah as well as the College for Medical Studies in Mosul.”76 The Medical College in

67

Id.
Counter Extremism Project, Overview: ISIS, https://www.counterextremism.com/threat/isis.
69
Richard Bennet, The Islamic State, Soufan Group, at 30 (November 2014).
70
Id.
71
Id. at 29-30.
72
U.N. Security Council: Letter, supra, note 16, ¶¶ 15-17.
73
Bennet, supra, note 69, at 31.
74
Counter Extremism Project, supra, note 68.
75
Sha’ban, They Plot and Allah Plots, 9 Dabiq 1436, CARION PROJECT, at 25 (May 2015).
76
Id. at 26.
68

12

 ar-Raqqah “attracted more than 300 applicants, of which 100 were accepted, half of
whom were muhājirīn”, or a foreign religious migrant to the region.77
35. Legal Council: The Legal Council is “responsible for decisions on executions and
recruitment” and “also handles family disputes and religious transgressions.”
36. Fighters Assistance Council: The Fighters Assistance Council is “responsible for
providing aid and housing to foreign fighters who come to ISIS’s territory, including
moving them into and out of the territory.”78
37. Security and Intelligence Councils: The Security Council oversees ISIS’s territory and
manages ISIS’s police and security units.79 The Intelligence Council operates “ISIS’s
intelligence-gathering wing.”80 ISIS has an intelligence network throughout its conquered
territory and acts quickly to eliminate any suspected dissidents.
38. Media Council: The Media Council “manages ISIS’s media strategy, including social
media.”81
b.

Local Authorities

39. ISIS divides territory under its control into wilayat, or states, with each headed by a Wali,
or governor, that oversees a governance structure mirroring ISIS’ central hierarchy, but
with a focus on civilian administration. The leadership of the wilayat comprise ISIS’
Provincial Council. ISIS provinces are divided into local districts. Central ISIS
governance organs maintain representatives in provinces and districts, and these entities
have greater power than their local counterparts.82

77

Id. Muhājirīn means “those who left their homes and estates, emigrating to give support to Allah and His
Messenger to establish His religion.”; Quran Tafsir Ibn Kathir, The Muhajirin and Al-Ansar are the Supporters
of One Another, http://www.qtafsir.com/index.php?option=com_content&task=view&id=1377, (accessed on
June 29, 2017).
78
Counter Extremism Project, supra, note 68.
79
Id.
80
Id.; Stanford University, supra, note 29.
81
Counter Extremism Project, supra, note 68; Hassan Abu Haniyeh, Daesh’s Organisational Structure, Al
Jazeera Centre for Studies, (December 4, 2014).
82
Bennet, supra, note 69, at 33-34.

13

 C.

ISIS For ces in Ir aq Commit Acts of Gender -Based Per secution, including
Tor tur e, Killing and Sexual Violence

40. ISIS brutally enforces strict gender regulations in areas of Iraq under its control, and
systematically targets women and girls with sexual violence. Its fighters subject those
deemed not to conform to ISIS’ conception of gender roles and behaviors, to harassment,
torture, murder, and sexual violence. These crimes are evidence of systematic persecution
of persons based on their gender including real or perceived sexual orientation or gender
identity.
1.

ISIS Publicly Defends and Promotes Gender-Based Persecution

41. ISIS has devoted significant amounts of written policies and propaganda to defending and
promoting gender-based persecution and discrimination, including violent repression of
women and of anyone falling outside of its prescribed gender norms dictating among
other things, behaviors, activities, and attributes assigned to women and men, and to girls
and boys.
42. ISIS’ rules for women and girls, which require them to adhere to the organization’s
prescribed gender roles include the following:
•

Women must serve their husbands and families.83

•

Women are not allowed to manage money.84

•

Women are prohibited from moving in public without a male guardian. Documented
punishment: beating.85

•

A woman may leave the home only: 1) to study theology 2) if she is a women’s
doctor or women’s teacher or 3) to engage in Jihad (if ruled by Fatwa only).86

•

Women must be dressed in a cloak with their head, face and feet fully covered.
Documented punishment: 50 lashes, biting exposed extremities.87

83

Women of the Islamic State: A Manifesto on Women by the Al-Khanssaa Brigade, at 17, (Charlie Winter,
trans. February 2015).
84
Id.
85
UNAMI, UN Human Rights Chief Zeid Condemns ISIL Killings Of Women Politicians And Activists in Iraq,
(September 25, 2014).
86
Women of the Islamic State, supra, note 83, at 22.
87
ISIS Publicly Flogging Woman on Charges of Violating Sharia Dress Code, ARA News, (May 16, 2016);
Mosul Terror Survivor: ISIS Judges Bit Exposed Women’s Hands as Punishment, THE WASHINGTON TIMES
(November 1, 2016). In the town of Mosul women were reported to be beaten with sticks in markets for not
wearing a veil. Documentation #13-16 (2014).

14

 •

Girls may be forced into marriage as early as 9 years old. Girls should be married by
the age of 16 or 17. Stoning to death for resisting forced marriage.88

•

ISIS fighters may rape and enslave women. The enslavement is subject to ISIS’s rules
on proper “rape” relations between the fighters and the enslaved women.89

•

Real or perceived homosexuality is forbidden. Documented punishment: execution.90 

43. ISIS’ rules for men and boys, which require them to adhere to the organization’s
prescribed gender roles, include the following:
•

Real or perceived homosexuality is forbidden. Documented punishment: execution.91

•

Men are prohibited from having western haircuts or giving someone else a western
haircut. Documented punishment: 80 lashes.92

•

Men are responsible for, and will be punished for, any non-abiding actions of the girls
or women in their family. Documented punishment: flogging. 93

•

It is forbidden for men to wear skinny jeans or tight clothing. Documented
punishment: Jailed for 10 days.94

•

Men must be bearded. Documented punishment: Three months in jail for first offense.
Second offense: beheading.95

44. ISIS’ Women of the Islamic State: Manifesto and Case study, a manifesto on the role of
women, explicitly states that men and women are not equal and have distinctly different
roles from each other.96 The Manifesto declares that “[i]t is the fundamental function of a
woman to become a mother and serve her husband and children. Women can only leave
the house in exceptional circumstances–to wage Jihad, when there are no men available,
or to study religion.”97 Women doctors and teachers are permitted to leave their homes to
travel to and from work but must adhere to all other rigid gender rules prescribed by the
88

Women of the Islamic State, supra, note 83, at 24; Iraqi Woman Stoned to Death for Refusing to Marry ISIS
Jihadist ARA NEWS (October 8, 2016).
89
Rape Regulations: ISIS Laws on Proper Sex Slavery Revealed, RUSSIAN TIMES (December 30, 2015).
90
Documentation #168.
91
Report: Islamic State Executes Teenager for “Homosexuality”, WASHINGTON BLADE (January 3, 2016).
92
Life Under ISIS: 80 Lashes for Cutting His Cousin’s Hair, NEWS WEEK (May 1, 2016).
93
One resident of the formerly ISIS-controlled town of Tikrit explained how ISIS fighters knocked on the doors
of homes to monitor dress code compliance, proclaiming they would flog any man who accompanied a woman
not wearing a veil. Documentation ## 13-16 (Nov. 7, 2014).
94
Morgan Winsor, ISIS Bans Skinny Jeans: Islamic State Arrests Men Caught Wearing Tight Pants in Raqqa.
INTERNATIONAL BUSINESS TIMES, (April 3, 2014).
95
ISIS Beard Police to Enforce Shaving Ban in Mosul, INTERNATIONAL BUSINESS TIMES (June 1, 2015).
96
Mah-Rukh Ali, ISIS and Propaganda: How ISIS Exploits Women, Reuters Institute, 2015, at 13.
97
Id.

15

 militia. The manifesto also permits girl as young as nine to be married and cautions that
all girls must be married by the age of 17 while they are still “young and active.”98
45. Under ISIS’ doctrine, women must demonstrate their complete social, political, economic
and sexual submission to men in their daily lives.99 The Manifesto, written by the AlKhansa’a Brigade, a woman’s policing brigade within ISIS, opposes feminist advances,
stating that contemporary women have stepped out of their religiously mandated role and,
in doing so, have emasculated men. It calls for women to retrain themselves and step into
their “rightful place” as subordinate to men.100 Women’s secondary role may involve
serving the community, but only in exceptional circumstances, according to The
Manifesto. Female doctors or teachers may only enter the public sphere in keeping with
ISIS’s interpretation of Shari’a guidelines.101 In 2014, ISIS launched the Zora
Foundation, an Arabic language media outlet directed at women. With crude clip art
videos, the website reinforces its stance that women’s place is the private sphere, as wives
performing domestic duties for male ISIS fighters.102
46. ISIS’ written dogma positions women as enslaved chattel or sub-human; or as wives,
mothers or daughters, relegated to the domestic sphere to be used to build the caliphate.103
The organization focuses on controlling and containing women’s and girls’ bodies, and
promotes and justifies some of the most severe and heinous forms of gender-based
violence, including rape, sexual enslavement, forced marriage, trafficking, and extreme
social control. For example, in a protocol on slavery, ISIS encourages further genderbased violence against the women and girls that it captures and enslaves. According to the
protocol, “[i]t is permissible to have sexual intercourse with the female captive,” and “it is
permissible to beat the female slave…”104 According to ISIS’ contorted religious
interpretation, its fighters perform virtuous religious acts when they commit rape and
sexual assaults.105

98

Id. at 14.
Women of the Islamic State, supra, note 83; Callimachi: ISIS Enshrines, supra, note 14; Documentation #168.
100
Women of the Islamic State, supra, note 83, at 17-18; Documentation #17.
101
Women of the Islamic State, supra, note 83, at 22; Documentation #20.
102
Homa Khaleeli, Domestic Terrorism: Housewives Told How to Prepare Battle Snacks, The
Guardian, (November 5, 2014).
103
See, for example, MEMRI, Islamic State (ISIS) releases pamphlet on female slaves (2014), available at
http://www.memrijttm.org/islamic-state-isis-releases-pamphlet-on-female-slaves.html; Women of the Islamic
State, supra, note 83; Documentation #13-16, report 2.
104
MEMRI, supra, note 103; Documentation #66.
105
Callimachi: ISIS Enshrines, supra, note 14; Documentation #13-16.
99

16

 47. ISIS strictly regulates visible forms of gender expression. Its “Research and Fatwa
Department” regulates all aspects of dress and appearance for men and women, bans
behaviors such as women sitting on chairs, and prohibits gender mixing in public
places.106 According to the UN Office of the High Commissioner, ISIS “has imposed
strict codes of behavior, including regulations concerning dress and freedom of
movement. Women must be fully covered while in public and are only allowed to move
in public in the company of an appropriately related male chaperone.”107 After seizing
Mosul, for example, ISIS distributed a “Bill of the City” house-to-house, ordering women
to stay home and only leave in cases of necessity.108 ISIS punishes violations of these
norms through “fines, lashings and even execution.”109
48. ISIS also strictly regulates Men’s appearance. ISIS prescribes rigid definitions for
masculine and effeminate characteristics, often conflating certain traits with heterosexual
and homosexual behaviors. Men that do not display masculine characteristics as defined
by ISIS risk being labeled as effeminate, and thus accused of homosexuality regardless of
their actual sexual orientation. The militia deems those who do not adhere to its strict
dress code and appearance requirements as transgressing gender norms. In Mosul, ISIS
distributed a leaflet forbidding men from shaving their beards because “no one does this
except men who are effeminate.”110 Male youth who do not (or cannot)111 conform to
ISIS’s appearance norms have been targets for violence and killing, having been labeled
as gay or “less masculine” based on their appearance alone.112
49. ISIS promotes a militarized, violent form of masculinity and condones exerting
patriarchal power in the public and private spheres, thus justifying the abuse of men and
106

12 Rules for Living Under ISIS: Follow or Be Killed, CLARION PROJECT (January 28, 2015); Documentation
#130, 134.
107
OHCHR, Technical Assistance Provided to Assist in the Promotion and Protection of Human Rights in Iraq,
U.N. Doc. A/HRC/30/66, at 31 (July 27, 2015); Documentation #93.
108
Rukmini Callimachi, For Women Under ISIS, a Tyranny of Dress Code and Punishment, N.Y. TIMES,
(December 12, 2016); Syria: Extremists Restricting Women’s Rights, Human Rights Watch (Jan. 13, 2014);
Mona Mahmood, Double-Layered Veils and Despair…Women Describe Life Under ISIS, THE GUARDIAN,
(February 17, 2015); Documentation #99.
109
OHCHR: Technical Assistance, supra, note 107, at 31; Documentation #107.
110
Johnlee Varghese, ISIS Bans Men from Shaving, Says Those Without Beard Are Effeminate, INTERNATIONAL
BUSINESS TIMES, (April 30, 2015).
111
Id.; Oliver Wheaton, Isis Has a New ‘Beard Police’ to Enforce Shaving Ban, METRO, (June 1, 2015);
INTERNATIONAL BUSINESS TIMES: ISIS Beard Police, supra, note 95 (noting that ISIS handed out leaflets in the
Iraqi city of Mosul ordering all men to grow full beards or face punishment. ISIS states that shaving facial hair
is Haram (forbidden) under their extremist interpretation of Islamic Law).
112
OHCHR and UNAMI, Report on the protection of civilians in armed conflict in Iraq: 1 May – 31 October
2015, at 19 (2016); Documentation #56, 168.

17

 women, boys and girls, including those real or perceived as lesbian, gay, bisexual,
transgender, or intersex (LGBTI). By joining ISIS’ militia, according to its online
magazine, Dabiq, men are refusing “a life of humiliation.”113 The group bans access to
internet, cell phones and satellite dishes in areas it controls, claiming that “satellite
channels normalize men being effeminate and sissies.”114 Its magazine urges male
fighters to strictly obey their military commanders,115 while telling them to expect
obedience from women. “To Our Sisters” advises that “if the weapon of the men is the
assault rifle and the explosive belt, then … the weapon of the women is good
behavior.”116
50. ISIS recruitment material claims the caliphate provides men the opportunity to be “true”
men, and positions those not part of the so-called Islamic State as not fulfilling their
proper gender roles. “True” masculinity depends on women also adhering to ISIS’ rigid
gender roles.117 As Al Khansaa Brigade puts it, “If women were real women then men
would be real men.”118 This construction of masculinity undergirds ISIS’ violent
opposition to same-sex intimacy between men or between women. ISIS’ frames its notion
of masculinity in opposition to “America and Western Europe” which it uses as a stand-in
for “bestiality, transgenderism, sodomy, pornography, feminism, and other evils.”119
Dabiq readers are told that fitrah, or proper predisposition to religiosity under Islam, is
manifest in “the attraction of man to woman and woman to man,” while “sodomites”
represent the worst of sexual perversion, and are worthy of death.120 In an explicit linking
of ISIS’ misogyny and homophobia, the magazine warns that “as the fitrah continues to
be desecrated day by day in the West and more and more women abandon motherhood,

113

Sha’ban, Just Terror, 12 Dabiq 1737, CLARION PROJECT, at 10, available at
https://clarionproject.org/docs/islamic-state-isis-isil-dabiq-magazine-issue-12-just-terror.pdf; Documentation
#168.
114
Babak Dehghanpisheh, and Michael Georgy, Documents Show Islamic State Obsessions: Beards and
Concubines, REUTERS, (November 1, 2016); Documentation #168.
115
Sha’ban: Just Terror, supra, note 113, at 9-10; Documentation #168.
116
Sha’ban, From the Battle of Al-Ahzab to the War of Coalitions, 11 Dabiq 1436, CARION PROJECT, at 44,
available at: https://clarionproject.org/docs/Issue%2011%20-%20From%20the%20battle%20of%20AlAhzab%20to%20the%20war%20of%20coalitions.pdf.
117
Dyan Mazurana, Dallin Van Leuven, and Rachel Gordon, Gender Under a Black Flag: ISIL Recruitment.
(August 19, 2015).
118
Id.
119
Sha’ban, The Fitrah of Mankind and the Near-Extinction of the Western Woman, 15 Dabiq 1437, CLARION
PROJECT, at 20, available at: http://clarionproject.org/wp-content/uploads/islamic-state-magazine-dabiq-fifteenbreaking-the-cross.pdf.
120
Id. at 21-23; Documentation #93.

18

 wifehood, chastity, femininity, and heterosexuality, the true woman in the West has
become an endangered creature.” 121
2.

ISIS Commits Torture and Murder as a Form of Gender-Based
Persecution
a.

Targeting women and girls for noncompliance with ISIS’ prescribed
gender norms

51. Women and girls under ISIS are subject to harsh restrictions that impact nearly all aspects
of their lives, and constrain their ability to move, to work, and to determine their own
behavior or appearance including clothing. ISIS brutally punishes women and girls it
deems out of compliance with its prescribed gender norms, subjecting them to physical
and sexual violence, torture and murder. As stated above, ISIS’ manifesto declares that:
“[i]t is the fundamental function of a woman to become a mother and serve her husband
and children. Women can only leave the house in exceptional circumstances–to wage
Jihad, when there are no men available, or to study religion.”122 Through its propaganda
and its targeted violence, ISIS makes clear that the acts that place women and girls out of
compliance include their failing to adhere to dress and movement restrictions. In addition,
being a lesbian or perceived as such, or serving as a public professional, such as a
politician or lawyer carries the punishment of death.
i.

Targeting women and girls for failure to adhere to dress
and movement restrictions

52. In August 2014, ISIS ordered all women to veil their faces and to only go out in the
company of an appropriate male “guardian,” or face severe punishment. That month, the
United Nations received reports of ISIS beating women who resisted the restrictions.123
Late that month, media outlets reported that ISIS members beat women with sticks for not
wearing veils in Mosul’s markets.124 In October 2015, in Mosul, an informant told human
rights documentors that members of Al-Khansa’a Brigade killed a 20-year-old pregnant
woman from the Al Sarjakhanah area because she lifted her niqab to drink some water.125
121

Sha’ban: The Fitrah of Mankind, supra, note 119, at 25; Documentation #108.
Mah-Rukh Ali, supra, note 96, at 13.
123
UNAMI, supra, note 85.
124
OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 11; Documentation #161
125
Documentation #65, 56.
122

19

 An hour after the Brigade members beat her unconscious, she passed away. Iraqi media
reported that ISIS murdered three women in December 2015 in Mosul for not wearing the
hijab.126 The instrument they used to kill the women is known as the “biter.” ISIS
members have attacked and killed other women and girls in Mosul with the biter, a metal
device with teeth that cuts into flesh.127 A 22-year-old woman who fled to a refugee camp
in Syria, reported that ISIS members assaulted her sister with the device for forgetting to
wear her gloves in public.128 She recounted that her sister described the weapon as “more
painful than labor pains,” and that a month after the assault the bruises and scars were still
visible.
53. Women who venture into public without a close male relative “guardian” also risk abuse.
For example, in June 2015, a married woman and her widowed sister-in-law stood in line
to receive a gas canister when an ISIS member detained them, warning them not to leave
the house without a mahram.129 According to Iraqi human rights documenters, the
married woman said that there was no one but her husband to escort her and he was
working. Shortly after returning home, ISIS raided the women’s house and kidnapped
them both. A day later, they returned home bruised and beaten. Shortly thereafter, they
reportedly self-immolated. One woman survived a short period and stated that ISIS raped
them. After their passing, the husband was seized and never seen from again.
Documenters also described how ISIS statement declared that the women were traitors
and that their suicides confirmed their guilt.
ii.

Targeting women for engaging in professional occupations

54. ISIS has prohibited women from most public occupations, only allowing them to work
outside of the home in a limited capacity, such as in medical professional roles of doctors
and nurses (largely because ISIS has a critical need for medical personnel) or as teachers,
and some positions as civil service administrator positions.130

126

Abdelhak Mamoun, ISIS Executes 3 women by “biter” in Central Mosul, Iraqi News, (December 18, 2015); I
Documentation #72.
127
Henry Holloway, ISIS Unleash Lady Jihadi Biting Brigade Armed With ‘Metal Jaws’ to Tear Women To
Death, DAILY STAR, (February 8, 2017); Documentation #57.
128
Patrick Cockburn, ISIS in Mosul: Brutal Metal Instrument Used to Clip Women's Flesh Shows Increasing
Barbarity Within 'Caliphate's' Own Walls. THE INDEPENDENT, (February 24, 2015); Documentation #116, 140.
129
Documentation #55, 70, 88.
130
Louisa Tarras-Wahlberg, Promise of Paradise? A Study of Official ISIS-Propaganda Targeting Women, at 36
(May 2016); Women of the Islamic State, supra, note 83, at 25; OHCHR and UNAMI, Report on the protection
of civilians in armed conflict in Iraq: 11 September – 10 December 2014, at 12-14. (2014).

20

 55. UN Assistance Mission in Iraq (UNAMI) has reported that numerous executions of
women in Mosul and other ISIL-controlled areas have taken place, some after perfunctory
“trials.”131 ISIS has abducted and killed numerous female public professionals, including
doctors, lawyers, and politicians, often trying them in self-appointed ISIS courts before
publicly executing them. For example, in July 2014, ISIS killed a female parliamentary
candidate in her home in the Ninewa governorate.132 While a number of professional
women, including community activists and human rights defenders, have been targeted
both for their occupation as well as for standing up against ISIS’s narrow gender ideology
concerning women’s activities in public life, the Office of the High Commissioner for
Human Rights (OHCHR) has noted that educated, professional women are particularly at
risk.133
56. Early on in its emergence in Iraq, ISIS targeted female doctors for execution, some under
the false pretext of adultery.134 After gaining control over significant parts of Iraq,
including Mosul, ISIS faced a dearth of trained medical professionals and started to
reduce the punishment for non-gender compliance of female medical professionals from
execution to torture or other cruel inhuman or degrading treatment.
57. Women members of the medical field spoke to human rights observers about the clothing
restrictions they faced under ISIS. Women and girls are prohibited from wearing any
color other than black, and are required to cover every inch of their bodies, including
gloves to cover their hands.135 One documented exception is for women doctors, who
have been assigned color-coded dress requirements in order to identify their marital
status. ISIS has required married women doctors to wear black and unmarried women
other colors.136 Female medical professionals are also required to wear gloves and niqabs
that cover their faces. They have been punished for removing them in order to perform
their medical duties such as examining patients.137 Women doctors also reported that ISIS
131

UNAMI, supra, note 85.
Minority Rights Group: No Place to Turn, supra, note 9, at 17; Documentation #13-16, (reporting the killing
of Iman Mohammad Younis al Salman, a local politician in Nineva).
133
Press Release, U.N. Office of the High Commissioner on Human Rights, Press Briefing Notes on ISIL/Iraq
and Death Penalty in SE Asia, (January 20, 2015). The UN’s Office of the High Commissioner noted that,
“[e]ducated, professional women, particularly women who have run as candidates in elections for public office
seem to be particularly at risk” of execution by ISIS.
134
Documentation #5, 57
135
Mah-Rukh Ali, supra, note 96, at 13 (citing, The Daily Mail, 4th December 2014, How 'up to 60' women rule
ISIS's capital by fear).
136
OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 10.
137
Shamdeen, supra, note 4.
132

21

 members monitored them when they entered hospitals; stopping and insulting them,
apparently for not appearing observant enough.138
58. About two months into ISIS’ occupation of Mosul, women doctors went on strike and
faced violent retaliation and threats.139 An open letter on the strike explains, “Female
doctors have continued to work in order to aid the sick and injured of Mosul, a city that is
in a critical condition because of the IS’ control over the city, aerial bombardment and the
fact that no salaries have been paid for weeks.”140 Even still, the letter noted that women
doctors, who might have tried to flee with their families, continued doing their work. Yet
for their efforts, “the IS group has imposed the niqab on female doctors in hospitals, with
fighters at hospital entrances in order to stop any female doctors coming or going unless
they’re wearing the niqab and gloves. When women doctors tried to convince them that
they couldn’t do their jobs and treat patients dressed like this, the IS men abused the
doctors verbally and began threatening them.”141
59. Two days after the letter was posted, the apparent author, Dr. Ghada Shafiq, a
gynecologist who worked at Mosul’s General Hospital, was attacked and stabbed to death
by militia members attempting to drag her from her home in the Tayaran area of south
Mosul.142 Her colleagues believe she was targeted because of the open letter. The letter
had warned female doctors against compliance, arguing that obedience could result in
escalated human rights violations against women.143 Women doctors who participated in
the strike reported that ISIS threatened to destroy or seize their property.144 Some felt
ultimately they had to return to work and abide by ISIS’ restrictions. Hospital sources,
however, told human rights observers that staff numbers in health care facilities in Mosul
declined by late 2014,145 which may have been partly attributable to ISIS’ restrictions and
threats. On September 5, 2014, ISIS executed three Sunni women medical professionals
in Mosul for allegedly refusing to treat ISIS fighters.146 Roughly a year later, ISIS

138

OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 10.
Id.
140
Shamdeen, supra, note 4.
141
Id.
142
Id.
143
Shamdeen, supra, note 4 (citing The Last Message of Dr. Ghada Shafiq, ALL-IRAQ, (August 18, 2014)).
144
Id.; OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 10.
145
OHCHR and UNAMI: Protection Report September-December 2014, supra, note 130, at 10.
146
OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 6, (documenting cases of
targeted assassinations of female professionals).
139

22

 members executed a doctor because she refused to wear the niqab, which ISIS had
imposed on all female hospital employees.147
60. In addition to attacks on female medical professionals, ISIS has also targeted women in
public roles. Women working in government positions or as lawyers have faced harsh
punishments and death for practicing their professions. A few examples include:
•

In September 2015, ISIS executed two female lawyers for violating its ban on women
practicing law in the criminal court.148

•

In November 2014, ISIS abducted and then publicly executed two former female
parliamentary candidates, Ibtisam Ali Jarjis from the Watanya List and Miran Ghazi,
from the Arab List in Mosul. ISIS reportedly forced the women to “repent”, but then
did not accept their repentance.149

•

In October 2014, after holding her prisoner for over a month, ISIS executed a
Turkmen former parliamentarian of Ninewa, Iman Mohammed Salman Younis.
Instead of handing over her body to her family, ISIS fighters threw it down a well.
Salman became a member of the House of Representatives in 2004 and was the first
woman to enter the Iraqi parliament for the Tal Afar district. She was also reportedly
the first woman journalist from Tal Afar.150

•

In October 2014, ISIS shot the female Deputy Attorney General of the Mosul Court of
Appeal in the head in a public execution.

•

In September 2014 ISIS killed Deputy Attorney General and former candidate in the
prior elections Ibtihal Al-Hayali. ISIS militants ordered her family not to hold a
funeral for her when they returned her corpse to them.151

•

In September 2014, ISIS abducted Sameera Salih Al-Nuaimy, a lawyer and human
rights activist, and publically executed her by masked firing squad five days later
outside a former governorate building in Mosul. An ISIS court had accused her of
apostasy because she denounced its bombing of mosques and historic shrines on

147

MADRE: The Wrong Kind of Woman, supra, note 5 (citing Shamdeen, supra, note 4 (“women have been
banned from working outside their homes – the only exceptions are obstetricians and nurses.”)).
148
OHCHR and UNAMI: Protection Report May-October 2015, supra, note 112, at 10.
149
OHCHR and UNAMI: Protection Report September-December 2014, supra, note 130, at 10; Ludovica
Laccino, ISIS Iraq News: Militants Execute Two Female Parliamentary Candidates in Mosul, INTERNATIONAL
BUSINESS TIMES, (November 26, 2014); Documentation #168.
150
Iraqi Women Targeted for Execution by IS, AL-MONITOR, (October 10, 2014); Documentation #13-16, 106.
151
Minority Rights Group: No Place to Turn, supra, note 9, at 17.

23

 Facebook. According to witnesses, her body showed signs of torture when ISIL
delivered it to her relatives.152
•

In July 2014, ISIS fighters killed a female candidate from the State of Law party list
after breaking into her home in the Ninewa province,.153 A day later, ISIS fighters
broke into the house of another female candidate for Ninewa Provincial Council from
the prior election, killed her, and abducted her husband.154

•

In July 2014 ISIS abducted another candidate from the previous general election after
storming into her house in eastern Mosul.155
iii.

Targeting women on the basis of real or perceived sexual
orientation

61. ISIS militia members have killed and tortured women and girls on the basis of real or
perceived sexual orientation. In June 2014, ISIS gained access to the academic and police
records of two female Mosul University students who had been caught kissing on the
premises and expelled from the University for behavior deemed as inappropriate.156 ISIS
then issued a death warrant against the two women on charges of engaging in homosexual
acts. Fearing torture and execution, the women went into hiding, constantly moving from
one abandoned house or building to another in Mosul and its outskirts. In 2015, the two
women reached out to Iraqi human rights defenders for help, who in response mobilized
their underground railroad to provide the women with safe passage and relocation
assistance through ISIS-controlled territories.
62. In November 2015, the two women embarked on the perilous journey on foot through the
Hamrain Mountains – a mountain ridge south of Mosul¾risking landmines and ISIS
snipers to reach the designated meeting point at the foot of the mountains. The women
walked for days, traveling by night and hiding by day, so as to avoid ISIS patrols and
snipers. Upon arriving at the meeting point, Iraqi human rights defenders facilitated the
women’s crossing through the security checkpoint, and took them to a safe house to
receive urgent care. Two weeks later, Iraqi human rights defenders arranged for the
women’s safe transfer to Kurdistan, where they were reunited with their relatives.
152

OHCHR and UNAMI: Protection Report September-December 2014, supra, note 130, at 10; UNAMI, supra,
note 85.
153
OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 10.
154
I Documentation #168
155
Id.
156
Id.

24

 63. As discussed in Section III(C)(1), ISIS regularly conflates gender transgressions with
homosexuality, and women who do not conform to the gender norms prescribed by ISIS
are accused of being homosexual. In August 2015, ISIS decapitated three women,
alleging that they were homosexual.157 Witnesses reported that the women had argued
with ISIS fighters after being told they were not allowed to leave their homes without a
male relative, and that prior to their execution, ISIS militants arrested them for disobeying
their orders.158 In June 2015, ISIS executed two women by shooting them in the head,
claiming that messages on their phones proved they were lesbians.159 After the
executions, ISIS militants reportedly announced that the women were “abominations.”160
b.

Targeting men and boys for non-compliance with ISIS’ prescribed
gender norms
i.

Targeting men and boys for failure to adhere to dress and
appearance requirements

64. ISIS has beaten, jailed, and killed men and boys whom it deems to have transgressed
gender norms by failing to adhere to its strict dress and appearance code, often alleging
that they are homosexual or insufficiently masculine.161
65. Included among victims are males who wear fashionable or “Western” clothing, such as
“skinny” jeans.162 According to UNAMI, on September 24, 2015, during the Eid al-Adha
holiday, ISIS abducted 36 young men in Mosul for wearing fashionable jeans.163 The
members of Al Hisbah (ISIS’s morality task force) punished the men by shaving their
heads and flogging them publicly in the street.
66. Another key indicator of masculinity under ISIS is the ability to grow a robust beard. In
May of 2015, in Mosul, ISIS banned males from shaving their beards, threatening those
without beards with two months’ jail time, beatings or death.164 Mosul Eye, a media
157

Documentation #140.
MADRE: The Wrong Kind of Woman, supra, note 5.
159
Documentation #110.
160
Id.
161
For example, a number of males ISIS executed on the accusation of homosexuality were considered
handsome young men who happened to cut their hair in a “modern way” or who dressed “elegantly.”
Documentation #56.
162
Winsor, supra, note 94.
163
OHCHR and UNAMI: Protection Report May-October 2015, supra, note 112, at 19.
164
Id. Johnlee Varghese, Mosul: ISIS Imprisons Men for 3 Months, Threatens to Behead Them for Shaving
Beard, INTERNATIONAL BUSINESS TIMES, (May 15, 2015).
158

25

 activist group, reported the arrest of a group of young men for shaving their beards.165
ISIS jailed the men for three months, and threatened them with beheading if they
removed their beards again. Militia members also circulated leaflets claiming that barbers
and hairdressers are an “accessory to sin” if they shave or trim men’s beards and will be
detained if they do so. Young men unable to grow substantial beards who once lived
under ISIS-control feared punishment from militia members. One 18-year-old from
Mosul told a news agency, “My facial hair is just slow to come out for my age […]. I’m
scared because they deal ruthlessly with anyone who opposes or ignores their
instructions.”166
ii.

Targeting men and boys on the basis of real or perceived
sexual orientation

67. The Islamic State has outlawed homosexuality, and has issued edicts against what is
defined as “homosexual” behaviors or appearances, including trendy hairstyles for men
and fashionable clothing.167 On December 15, 2014, ISIS released a penal code entitled,
“Clarification [regarding] the Hudud [Koranic punishments],” which declares that the
punishment for same-sex sex is “death for the person committing the act, as well as for
the one receiving it.”168 ISIS-appointed courts have sentenced men to death based on their
real or perceived non-conforming sexual orientation and gender behavior, and then
executed them, often by throwing the victims off buildings, and then stoning to death any
who survive the fall.169 In some instances, they place a bag filled with weights over the
victim’s head so that the body falls on the head upon impact.170 Individuals labeled as
homosexual by ISIS may also endure rape and other forms of torture before executions.171
Other common forms of execution for the accusation for appearing homosexual include
death by firing squad, immolation or beheading. ISIS has attacked or disappeared family
members who try to intervene.172 To further perpetuate stigma and isolate the victim’s

165

Johnlee Varghese, supra note, 164.
Wheaton, supra, note 111.
167
Ishaan Tharoor, The Islamic State’s Shocking War on Gays, WASHINGTON POST, (June 13, 2016).
168
Id. (citing Jihad and Terrorism Threat Monitor, Islamic state (Isis) publishes penal code, saysi it will be
vigilantly enforced (December 17, 2014)).
169
Id.; OHCHR and UNAMI: Protection Report May-October 2015, supra, note 112, at 17, (documenting cases
of civilian in armed conflict).
170
Documentation #56.
171
Mark Levine, Killing Emos, and the Future, in Iraq, AL JAZEERA, (March 20, 2012).
172
Documentation #55; August 27, 2015; Documentation #140.
166

26

 family, ISIS may emblazon the phrase: “One of the houses of the Lot tribe,” on the
victim’s family’s domicile, threatening the family with death if they remove the label.173
68. ISIS grounds its persecution in extremist interpretations of Islamic sources, referring to
homosexuals as belonging to the tribe of Lot, and telling the story of a prophet whose
people were destroyed for transgressing moral norms.174 According to ISIS’s online
magazine, Dabiq, ISIS seeks to regulate gender conformity and implement “the rulings of
Allah on those who practice any form of sexual deviancy or transgression,” in order to
avoid the “same rotten course” as the “West”.175
69. Escaped victims describe a systematic effort by ISIS to track and punish perceived
homosexuals. A gay Iraqi man who fled an area of Iraq overrun by the Islamic State, told
a reporter, “[ISIS] are also professional when it comes to tracking gay people. They hunt
them down one by one. When they capture people, they go through his phone and his
contacts and Facebook friends. They are trying to track down every gay man. And it's like
dominoes. If one goes, the others will be taken down too.”176
70. Numerous reports of executions of men and boys based on their real or perceived sexual
orientation have emerged from ISIS-controlled areas in Iraq. For example, according to
an October 2015 UNAMI report, “[o]n 4 June, ISIS killed three civilians for alleged
homosexual acts. Two young males and a 60-year-old man were thrown from the
National Insurance Company building in the Dawasa area of central Mosul, Ninewa.
Militants read a condemnation of the men that was issued by an ISIS self-appointed court
before killing them. Pictures of the killings were posted on social media.”177 UNAMI also
reported that on October 8, 2015 “ISIL publically murdered two men aged 21 and 26, by
throwing them from the top of an eight-story building, in the Palestine area of western
Mosul, for allegedly being homosexual.178 The victims were killed following the decision

173

Documentation #55.
OutRight Action International, Timeline of Publicized Executions for Alleged Sodomy by the Islamic State
Militias, (June 30, 2016).
175
Rabi’ Al-Akhar, From Hypocrisy to Apostasy: The Extinction of the Grayzone, 7 Dabiq 1436, CLARION
PROJECT, at 43 (February 2015), available at https://clarionproject.org/docs/islamic-state-dabiq-magazine-issue7-from-hypocrisy-to-apostasy.pdf.
176
See, e.g., Why my own father would have let IS kill me, BBC, (July 23, 2015).
177
U.N. Office of the United Nations High Commissioner for Human Rights and United Nations Assistance
Mission for Iraq—Human Rights Office, Report on the Protection of Civilians in the Armed Conflict in Iraq: 1
May – 31 October 2015, at 17 (2015) (documenting cases of civilian in armed conflict).
178
Id.
174

27

 of an ISIS self-appointed court.”179 In at least one instance, potential victims who were
not yet detained managed to flee an ISIS-controlled area, prior to execution of an ISISissued death warrant.
71. On September 12, 2015, two gay men from Mosul reached out to Iraqi human rights
defenders for assistance.180 They had been hiding for three months in a house on the
outskirts of Mosul, fearing a death sentence that ISIS had issued against them. The young
men eventually passed through the Homrain Mountains on foot. They entered Samarra,
where they were assisted by Iraqi human rights defenders, and were able to escape to
Kirkuk six days later.
72. ISIS publishes photos of the executions as propaganda. Since 2014, OutRight Action
International (OutRight) has tracked photo reports issued by ISIS fighters purporting to
show the execution of men who had engaged in sodomy.181 OutRight lists 11 incidents in
Iraq, resulting in 23 executions. On April 19, 2016, for example, the Islamic State’s
Information Office in Aljazirah Province (an administrative division of the area
controlled by the Islamic State), in the city of Tel-Afar, Iraq, issued a photo report
depicting “the imposition of Sharia punishment on a person who committed the acts of
the people of [Prophet] Lot in the city of Tel-Afar” by throwing the blindfolded victim off
a building.182
73. Iraqi human rights defenders have also documented the following torture, abductions, and
murders of people on the basis of gender identity or sexual orientation in and around the
Mosul area, all allegedly perpetrated by ISIS. It is likely that many others go unreported:
•

October 2016: ISIS executed two men via shots to the head in the Al-Rifaq Al-Thani
area on charges of homosexuality. They were 21 and 29 years old. ISIS moved their
bodies to an unknown location.183

•

August 2016: ISIS militants threw four young men off of a building in Bab Al Tob
after accusing them of homosexuality.184

179

Id.
Documentation # 58.
181
OutRight Action International, supra, note 174. Human Rights & Gender Justice Clinic at CUNY School of
Law, Dying to be Free: LGBT Human Rights Violations in Iraq, (November 2015).
182
OutRight Action International, supra, note 174.
183
Documentation #148; Oct 18, 2016
184
Documentation #136; Aug 7, 2016
180

28

 •

August 2016: ISIS raped three young men in Hawija after accusing them of sodomy.
ISIS then executed them and left their bodies in the Kbaiba area, at the entrance to
Hawija. ISIS militants took five hundred dollars from the victims’ community for the
men’s “dishonor.”185

•

July 2016: ISIS executed eight men on charges of homosexuality. Its fighters closed
nearby roads and forced members of the public to watch them shoot the men in the
head.186

•

June 2016: ISIS arrested, raped, and then two days later, executed three young men
from Mosul, on charges of homosexuality. All were under 16 years old. After stoning
and burning them to death, ISIS abandoned their bodies were abandoned near Al
Nifayat Park.187

•

June 2016: ISIS executed two young women by shots to the head in Al Sukkar
neighborhood on charges of being lesbians. ISIS seized them on 12 June and by Al
Hisbah (ISIS morality task force). ISIS members claimed they found messages,
photos, and conversations on the young women’s phones that indicated their
sexuality.188

•

May 2016: ISIS immolated two young men in Al Ghazlani area on charges of
homosexuality.189

•

April 2016: ISIS immolated seven young men in Mosul on charges of homosexuality.
ISIS did not return their remains to their families.190

•

January 2016: ISIS executed three young men in Al Rashad Stadium in southern
Kirkuk, on charges of homosexuality. Their families were not allowed to take the
bodies afterward.191

•

December 2015: After two months of detaining them, ISIS executed three young men
by shots to the head in a soccer field behind the public hospital in Hawija on charges
of homosexuality.192

•

November 2015: ISIS beheaded four young men at Al Ghazlani Camp Intersection on
charges of homosexuality.193

185

Documentation #132.
Documentation #127.
187
Documentation #107.
188
Documentation #110.
189
Documentation #99.
190
Documentation #88.
191
Documentation #77.
192
Documentation #80.
186

29

 •

October 2015: ISIS beheaded six young men on charges of homosexuality.194

•

September 2015: ISIS executed four men between ages 20-27 years old by
immolation on charges of homosexuality. An eyewitness said that ISIS put the victims
in a rectangular hole about two meters deep and one meter and a half wide, and tied
the victims to each other with metal chains. They then put benzene on them and
burned them. Afterward, they buried them in the same hole.195

•

September 2015: ISIS executed three males in the Karama district of Mosul on
charges of “practicing the actions of sodomites.” ISIS placed them in a large
container, tied them up in metal chains and then immolated them.196

•

August 2015: ISIS executed eleven young men in Mosul throughout the month on
charges of homosexuality.197
3.

ISIS Commits Rape, Sexual Slavery and other forms of Sexual Violence
as a Form of Gender-Based Persecution

74. ISIS employs sexual violence as a strategic weapon and “as a tactic of terror, a core
element of their ideology and modus operandi.”198 While ISIS’ sexual violence against
Yazidi women is well-documented, ISIS has also subjected Muslim, Christian and
Turkmen women in Iraq to human rights violations, including sexual and gender-based
violence.199 Its fighters have also committed acts of rape and other forms of sexual
violence against boys and men.200
75. Sexual enslavement of women and girls is a hallmark policy of ISIS’s control in Iraq,201
and is used as a propaganda tool for recruiting and maintaining ISIS fighters.202 ISIS

193

Documentation #72.
Documentation #59.
195
Documentation #69.
196
Documentation #57.
197
Documentation #55.
198
European Parliament Members’ Research Service, Fighting conflict-related sexual violence. Briefing, at 4, 9
(December 2016).
199
Kristie McCrum, Captured ISIS Fighter Claims Fellow Jihadis Were Rewarded with Slave Girls for Their
Loyalty to Their Cause, MIRROR, (September 29, 2016); Human Rights Watch: World Report Iraq, supra, note
6; HRW, Iraq: Sunni Women Tell of ISIS Detention, Torture, Describe Forced Marriage, Rape (February 20,
2017).
200
Human Rights Watch Iraq: Forced marriage, conversion for Yezidis, (November 11, 2014); OHCHR and
UNAMI: Protection Report July-September 2014, supra, note 5, at 15.
201
Callimachi: ISIS Enshrines, supra, note 14.
202
McCrum, supra, note 199.
194

30

 created an extensive system to profit off the sale of captured women and girls.203
According to human rights and media reports, such sexual exploitation is a major source
of income for ISIS, and is a means to attract fighters.204 Women are bought, sold and
traded within an organized system that includes sales contracts notarized by ISIS-run
courts.205 ISIS published rules on the trade and sale of women and girl sexual slaves. The
average sale for girls 9 years old or younger is about $170 US dollars each; girls and
young women ages 10-20 year old cost about $130 and those between 20-30 years old are
sold for about $90.206
76. The pages of its flagship magazine, Dabiq openly espouses sexual slavery, trafficking,
forced marriage, rape and other forms of sexual violence committed against women and
girls, making clear that these forms of gender-based violence are fully acceptable within
ISIS dogma.207 Dabiq featured an article entitled “The Revival of Slavery,” which
justified and embraced the practice of sexual slavery and trafficking as a means to
eradicate “pagan” Yazidi women and girls from the Muslim world.208 The Research and
Fatwa Department of ISIS also published a pamphlet not only justifying enslavement of
women and girls, but also detailing the conditions under which females can be bought,
sold, beaten and raped.209
77. ISIS “rewards” its fighters with the widows of executed men, as motivation to continue
fighting.210 Yazidi women and girls who have managed to escape ISIS report that fighters
forced them into “weddings” including “temporary marriages,” sold them multiple times,
and gave them as “gifts” to fighters.211

203

Human Rights & Gender Justice (HRGJ) Clinic at CUNY School of Law, Seeking Accountability and
Demanding Change: A Report on Women’s Rights Violations in Iraq, at 28-29 (October 2015).
204
Minority Rights Group: No Place to Turn, supra, note 9, at 32.
205
U.S. Department of State, Iraq: 2016 trafficking in persons report (2016).
206
Mah-Rukh Ali, supra, note 96, at 13, (citing: Jamal Abdul-Alim, ISIS ‘manifesto’ Spells Out Role for
Women, THE ATLANTIC, (March 8, 2015))
207
Sha’ban, They Plot, supra, note 75, at 45, 48 (“As for the slave-girl that was taken by the swords of men
following the cheerful warrior (Muhammad – sallall(a)hu ‘alayhi wa sallam), then her enslavement is in
opposition to human rights and copulation with her is rape?! What is wrong with you? How do you make such a
judgment? What is your religion? What is your law? Rather, tell me who is your lord?”). Id.
208
Human Rights & Gender Justice Clinic, Seeking Accountability and Demanding Change, supra, note 203, at
29; 5 Robert Mackey, Islamic State Propagandists Boast of Sexual Enslavement of Women and Girls, N.Y.
TIMES (October 14, 2014).
209
MEMRI, supra, note 103.
210
OHCHR and UNAMI: Protection Report May-October 2015, supra, note 112, at 28.
211
Human Rights Watch Iraq: Forced marriage, supra, note 200; UNICEF Horrifying accounts of child rights
violations emerge from survivors of violence in north-western Iraq. (August 20, 2014); U.S. Department of State
Iraq 2015 human rights report, at 58, (2015).

31

 78. Women from other religious and ethnic communities have also been subjected to forced
marriage and sexual enslavement.212 Survivors of sexual slavery told Human Rights
Watch that ISIS detained at least several dozen people from other ethnic and religious
communities during its 2014 offensive, among them Christians, Shia Shabaks, and
Turkmen.213 In August 2014, OHCHR and UNAMI reported that ISIS transported 150 of
the approximately 450−500 Yezidi and Christian women and girls it imprisoned in the
citadel of Tal Afar in Ninewa to Syria to be “given” to ISIS fighters or sold as sex
slaves.214 A Sunni woman told Human Rights Watch that in 2016 she attempted to flee
Hawija with 50 other families, but ISIS caught and detained the group. 215 During her
detention, militia members beat her, suspended her from cables and raped her repeatedly
in front of her children, after she said she would not agree to marry one of the fighters.
79. Iraqi human rights advocates report that in addition to the direct seizure of women as
occurred on Mt. Sinjar in 2014, ISIS forcibly acquires women and girls by threatening
their family members with arrest or death. For example, according to human rights
defenders in Iraq, in February 2016, a woman sought the release of her husband from an
ISIS prison.216 After multiple appeals, she went to ISIS headquarters in Hawija without
results. Afterwards, ISIS members went to her home to bargain the release of her husband
for the marriage of her two daughters, a 16 year-old and a 14 year-old. She ultimately
took her children on the dangerous trip through the Homrain Mountains and escaped to
Rubaida.217 In 2015, a man told a reporter that he fled from Fallujah to Baghdad and
ultimately to Kurdistan to prevent his daughters from being forcibly married to ISIS
fighters, after one knocked on his door, demanding to marry one of them and claiming it
was his legal right.218
80. In a similar situation, ISIS arrested a woman and her two daughters, one 19 years old, the
other 17 years old, for attempting to flee an ISIS-controlled area following her husband’s

212

McCrum, supra, note 199; HRW: World Report Iraq, supra, note 6; HRW, Iraq: Sunni Women Tell of ISIS
Detention, Torture, supra, note 199.
213
HRW, Iraq: Sunni Women Tell of ISIS Detention, Torture, supra, note 199.
214
OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 15.
215
HRW, Iraq: Sunni Women Tell of ISIS Detention, Torture, supra, note 199.
216
Documentation #97.
217
Id
218
Patrick Cockburn, War with ISIS: The grim reality of life under the Islamist group in Iraq, INDEPENDENT (16
May, 2015, 20:54 BST), available at http://www.independent.co.uk/news/world/middle-east/war-with-isis-thegrim-reality-of-life-under-the-islamist-group-in-iraq-10255422.html

32

 death.219 Upon their capture, she refused to allow her daughters to be married to ISIS
members. ISIS kidnapped her daughters and publically executed her in May 2016.220
Shortly before July 2016, ISIS executed a family of seven after the family refused to
allow an ISIS member to wed their 11-year-old daughter. Subsequently, an ISIS member
raped and immolated the young girl.221 In June 2016, ISIS imprisoned a man for refusing
to allow an ISIS member, aged 50, to marry his 12-year-old daughter. According to a
witness, ISIS militants told the father: “Either wed her to one of them or she will be
executed.” The daughter was forced to marry an ISIS member.222
81. In addition to creating organized systems of sexual exploitation of women and girls, ISIS
fighters also rape and sexually assault people they capture, stop, or detain. Within a week
of seizing Mosul, women’s rights advocates reported that fighters raped eighteen women,
four of whom then committed suicide. The numbers of ISIS rapes and sexual assaults in
Mosul were likely far higher, but shame and stigma prevented reporting.223 For example,
in the Turkmen village of Bashir, ISIS captured nine women and a twelve year-old girl,
raped them, killed them, and then hung their bodies out in public.224 A Yezidi girl who
had been captured by ISIS in August 2014, contacted UN monitors and told them several
ISIS fighters raped her multiple times before selling her in a market. The OHCHR
received reports from two families that ISIS fighters raped two boys seized in Sinjar in
August 2014.225 Men and women who managed to contact the monitors while detained by
ISIS in 2014 reported that ISIS fighters regularly sexually assaulted detained teenagers,
both male and female.226
D.

ISIS For ces in Ir aq Committed the War Cr ime of Tor tur e Motivated by
Discr imination Based on Gender including Non-Confor ming Sexual Or ientation
and Gender Identity

82. To enforce strict gender regulations and norms, ISIS forces in Iraq have systematically
subject civilians to acts of violence that cause severe physical and mental pain and
suffering. These crimes are evidence of systematic torture based on gender
219

Documentation #99.
Id.
221
Documentation #116.
222
Documentation #99.
223
Minority Rights Group: No Place to Turn, supra, note 9, at 24.
224
Id.
225
HRW Iraq: Forced marriage, supra, note 200.
226
OHCHR and UNAMI: Protection Report July-September 2014, supra, note 5, at 15.
220

33

 discrimination, including real or perceived sexual orientation or gender identity. The first
two parts of this section briefly review ISIS’ professed ideology of gender discrimination,
and the crimes of torture that it has committed on this basis. The third part of this section
provides the legal foundation for a finding that the element “discrimination of any kind”
within the war crime of torture includes discrimination based on gender, including sexual
orientation and gender identity. The specific ways in which ISIS’ gender-based crimes
meet each of the required elements such that they constitute the war crime of torture are
treated separately, in Section IV(B)(1)(b).

1.

ISIS Publicly Defends and Promotes Gender-Based Persecution

83. As described in Section III(C)(1), ISIS publicizes detailed explanations and justifications
of its discriminatory views on gender in its magazine, recruitment materials, widely
distributed leaflets, and other online publications. It promotes violent repression of
women and girls, and of anyone it deems as noncompliant with its prescribed gender
norms and regulations, including people it deems to be non-conforming in their sexual
orientation or gender identity. In handbills and in its other print media, ISIS has issued
detailed rules, regulating the dress, behavior and movements of men and women. Women
in ISIS-controlled territory in Iraq must be fully covered, for example, and only leave the
house with a related male guardian. ISIS requires women’s full subservience to men,
relegating them to the domestic sphere to serve ISIS militants either as wives and
mothers, or as sex slaves. Men and boys are required to adhere to ISIS’ violent notion of
masculinity, which defines “real men” as “heterosexual”, as dutiful ISIS fighters, and as
husbands and fathers who should expect women’s obedience. They must grow and
maintain robust beards and avoid any clothing ISIS deems “effeminate,” including stylish
jeans. ISIS often publicly tortures and executes people its militants deem out of
compliance with prescribed gender norms. It sometimes distributes photographs of its
crimes, as it has, for example, with photographs of its militants torturing and executing
men and boys accused of homosexuality (see Section III(C)(2)(b)(ii)).

34

 2.

ISIS Tortures People on the Basis of Gender, Sexual Orientation, and
Gender Identity

84. ISIS brutally punishes people it deems out of compliance with its prescribed gender
norms, while also subjecting women and girls, as a policy, to among the most severe and
heinous forms of gender based violence. Section III(C) describes these crimes in greater
detail. They include beatings, unlawful detentions, rape, sexual slavery, and painful
execution measures involving, for example, immolation, and throwing people from high
buildings with bricks attached to their heads. ISIS carries out these violent crimes against
women and girls who fail to adhere to its dress and movement restrictions, who work as
professionals, or who it accuses of being lesbian. It tortures and executes men and boys
for not adhering to its dress and appearance requirements, or on accusations of
homosexuality. ISIS also commits widespread, systematic sexual violence against women
and girls. Its militants espouse and carry out rape, forced marriage, trafficking and sexual
enslavement of women and girls, and have raped male and female detainees.

3.

Element of “Discrimination of Any Kind” for the War Crime of Torture
Includes Discrimination Based on Gender, Including Sexual Orientation
and Gender Identity227

85. In order to establish that the war crime of torture under Article 8(2)(c)(i)-4 of the Rome
Statute has been committed, it must be demonstrated that the victims were civilians or
other actors not taking part in active hostilities, that the perpetrator was aware of factual
circumstances establishing this status, that the conduct was in the context of and
associated with an internal armed conflict of which the perpetrator was aware, that the
“perpetrator inflicted physical or mental pain or suffering upon one or more persons,” and
that the perpetrator did so “for such purposes as obtaining information or a confession,
punishment, intimidation or coercion or for any reason based on discrimination of any
kind.”228

227

This section contains excerpts from: Lisa Davis, Reimagining Justice for Gender Crimes at the Margins:
New Legal Strategies for Prosecuting ISIS Crimes Against Women and LGBTI Persons, 24 WM. & MARY J.
WOMEN & L. 175 (forthcoming, 2018).
228
Rome Statute Elements 8 (2) (c) (i)-4. War crime of torture. Elements. Italics added.

35

 86. The historical record on the Rome Statute’s drafting, and developments under customary
international law make plain that the element “discrimination of any kind” includes
discrimination based on gender, including sexual orientation and gender identity.
87. Drafters of the Rome Statute based the definition of torture on existing international
human rights law, which recognizes “discrimination of any kind” to include gender,
including sexual orientation and gender identity
88. Delegates to the Prepatory Committee (PrepCom) that was established in 1996 to create
what would become the Rome Statute, utilized existing international human rights law to
define torture under international criminal law.229 Specifically, PrepCom delegates turned
to the definition of torture under Article 1 of the Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), which they considered to
reflect customary international law and found operative within international humanitarian
law.230 The drafters used verbatim the first three elements of the CAT definition,231 and
added the Rome Statute’s fourth and fifth elements, distinguishing the perpetrator as an
armed actor as opposed to a state actor. Several delegation members noted that many
judgements of the ad hoc tribunals also adopted language from the CAT.232
89. The CAT is the only legally binding instrument at the international level that exclusively
addresses the prevention and elimination of the practice of torture for states. Today, 162
states have ratified it.233 Like the Rome Statute, for a finding of torture, the CAT requires
intentional infliction of severe physical or mental pain or suffering, for specified purposes
such as interrogation, punishment or intimidation or coercion of the victim or a third
person, or, “for any reason based on discrimination of any kind.” Again, the primary
229

Knut Dormann, War Crimes under the Rome Statute of the International Criminal Court with a Special Focus
on the Negotiations on the Elements of Crimes, Max Planck Yearbook of the United Nations Law, Vol. 7, 2003,
350-351 (2003); Patricia Viseur Sellers, Sexual Torture as a Crime Under International Criminal and
Humanitarian Law, 11 N.Y. City L. Rev. 339, 342 (2008). (citing See Prosecutor v. Jean-Paul Akayesu, Case
No. ICTR-96-4-T, Judgment (Sept. 2, 1998), Prosecutor v. Furundzija (Furundzija), Case No It-95-17/1 (July
21, 2000).; see also, Prosecutor v. Delalic (Delalic), Case No. IT-96-21-T, Judgment, 452-469 (Nov. 16, 1998).
230
Dormann, supra, note 229, at 366-367; Sellers, supra, note 229.
231
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85., Art. 1. (“the term "torture" means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third person has committed or is suspected
of having committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.”)
232
Knut Dormann, supra, note 229, at 367-369.
233
OHCHR, Status of Ratification Interactive Dashboard, http://indicators.ohchr.org/ (accessed June 1, 2017).

36

 difference between the two definitions is that while the Rome Statute requires the
perpetrator be an armed actor in a conflict, the perpetrator or instigator under CAT must
be a state official or person acting in official capacity.234
90. “Discrimination of any kind” should be interpreted by its plain meaning. The CAT does
not qualify or limit the purpose of “discrimination of any kind” to specific categories or
protected classes.235 While on its face, this definition includes gender discrimination
including sexual orientation and gender identity (SOGI) discrimination, SOGI is also
explicitly recognized as a category of discrimination that takes shelter under the CAT
Convention.
91. In 2007, the Committee Against Torture adopted General Comment No. 2 (the
Comment),236 consolidating decades of international developments on the understanding
of gender-based torture as a human rights violation. CAT Comment No. 2 affirms that
gender is a social construction and highlights the often-obscured roles of gendered
discrimination in facilitating the practice of torture.237 It clarifies that both men and
women, and more specifically, persons who deviate from their culturally assigned heteronormative gender roles, are at risk of gender discrimination.238 It prohibits such
discrimination, finding that states have the responsibility to protect against gendermotivated crimes of torture, explicitly including when directed against LGBTI people and
other gender transgressors.239
92. The Rome Statute’s list of prohibited purposes in the Elements of Crimes is not
exhaustive and does not preclude the Court from providing further clarification. In the
International Criminal Tribunal for the former Yugoslavia (ICTY) case Prosecutor v.
Kronjelac, the Trial Chamber clarified that the purposes element of torture sets it apart

234

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85., Art. 1. (or with the consent or acquiescence of a public official or other person acting
in an official capacity.); Rome Statute, 2187 U.N.T.S. 90, Article 7(1)(f),
Article 8 (2) (a) (ii)-1.
235
Some treaties have limited the scope of “discrimination of any kind” relative to the respective rights they
uphold. For example, the International Covenant on Economic, Social and Cultural Rights under Article 2 calls
on states to guarantee that the rights of the Covenant will be exercised without discrimination of any kind as to
race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status. It should also be noted that the Economic, Social and Cultural Rights Committee has found “other status”
to include sexual orientation.
236
CAT, Gen. Cmt. No. 2.
237
Id. ¶ 22.
238
Id.
239
Id. ¶¶ 21-22.

37

 from other criminal offenses. “Torture as a criminal offence is not a gratuitous act of
violence; it aims, through the infliction of severe mental or physical pain, to attain a
certain result or purpose.”240 Building on this, the Trial Chamber also emphasized that
such conduct need not be perpetrated solely for the prohibited purpose.241 Instead, “the
prohibited purpose must simply be part of the motivation behind the conduct and need not
be the predominant or sole purpose.”242
a.

Customary International Law Recognizes Sexual Orientation and
Gender Identity as Protected Classes

93. Article 21(3) of the Rome Statute requires the Court to apply and interpret law in
accordance with existing internationally recognized human rights.243 Customary
international law (CIL) is one key source of international human rights law with regard to
discrimination and establishment of protected classes. Developing international law
spanning the last three decades has established sexual orientation and gender identity as
protected classes, which compels the Court to apply this recognition in its definition of
torture under the Rome Statute.
94. In 1981, in the breakthrough case of Dudgeon v. United Kingdom, the European Court of
Human Rights found that a nineteenth century law still in force in Northern Ireland
criminalizing male homosexual acts violated the right to privacy under Article 8 of the
European Convention on Human Rights.244 By 1999, as international law began codifying
240

Prosecutor v. Kronjelac, op. cit., §180. The ICTY has also found that the various purposes identified by the
CAT treaty or tribunals do not necessarily imply an exhaustive list, although likely the purpose may need to be
closely related to one of the already established prohibitions. See, e.g., Prosecutor v. Brđanin (2004), op. cit.,
§487 (holding that “[t]he prohibited purposes… do not constitute an exhaustive list”); Prosecutor v. Musema
(2000), op. cit., § 285 (using the phrase “for such purposes as” indicating the list is not exhaustive). See, e.g.,
Prosecutor v. Furundžija (1998), op. cit., §162. But See, Prosecutor v. Kunarac, Kovać and Vuković (finding
for definition of torture under customary international law there must be a purpose of “obtaining information or
a confession, or at punishing, intimidating or coercing the victim or a third person, or at discriminating, on any
ground, against the victim or a third person” and no other purpose. Prosecutor v. Kunarac, Kovać and Vuković
(2001), op. cit., §497; Prosecutor v. Delalić and Others (the Čelebići case) (1998), op. cit., §494; Prosecutor v
Furundžija (2000), op. cit., §111. Prosecutor v. Furundžija (2000), ibid. §111.
241
ICTY Judgment, The Prosecutor v. Zejnil Delalic and others IT-96-21-T, 470.
242
Delalic IT-96-21-T, 470; see also, Kunarac IT-96-23/1-A, 155.
243
“The application and interpretation of law pursuant to this article must be consistent with internationally
recognized human rights….” Rome Statute, Article 21(3).
244
Dudgeon v. United Kingdom, App. No. 7525/76, Eur. Ct. H.R. (1981) (finding the decision 15 to 4).
Although the law was not being enforced, Dudgeon challenged that as a homosexual he ran the risk of
prosecution. Interestingly, the same law had been repealed in England and Wales. The Court has gone on to
consistently hold LGBT persons are afforded rights under the European Convention. See e.g., X. v. Turkey,
October 9 2012, no. 24626/09 (solitary confinement in prison motivated by prisoner’s sexual orientation is
discriminatory inhuman or degrading treatment); Case of Identoba and Others v. Georgia, 12 May 2015, no.
73235/12 (failure of the police to adequately protect LGBT march from violent counter-protestors and

38

 SOGI rights more broadly, the European Court followed suit, expanding its scope of
liability from violations of the right to privacy to the inclusion of SOGI as a protected
class against discrimination.245
95. Many of the references to sexual orientation or gender identity throughout the UN human
rights system stem from the Human Rights Committee’s landmark 1994 decision, Toonen
v. Australia.246 The Committee held that sexual orientation was included in the
International Covenant on Civil and Political Rights’ antidiscrimination provisions as a
protected status. The Toonen decision, like the Dudgeon decision for Europe, marked a
turning point in the recognition of gay and lesbian rights within the UN human rights
system.247
96. Aside from the CAT and the Human Rights Committees, other UN treaty bodies have
recognized SOGI as a protected class in their General Comments and Recommendations.
Beginning in 2000, the Committee on Economic, Social, and Cultural Rights (CESCR)
has listed sexual orientation as protected grounds from discrimination numerous times.248
By 2009, the CESCR Committee crystalized its jurisprudence through its General
Comment No. 20, recognizing sexual orientation and gender identity as protected classes

subsequent failure to conduct a proper investigation into those crimes violates prohibition on inhuman or
degrading treatment).
245
See Lustig-Prean & Beckett v. United Kindgom App. No. 31417/96 and 32377/96 Eur. Ct. H.R. (1999);
Smith & Grady v. United Kingdom App. No. 33985/96, Eur. Ct. H.R. (1999) (holding that such discriminatory
policies “were founded solely upon the negative attitudes of heterosexual personnel towards those of
homosexual orientation” and cannot justify discrimination “any more than similar negative attitudes towards
those of a different race, origin or colour.”).
246
Toonen v. Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994) (holding that
a Tasmanian law criminalizing consensual sexual contact between men was not “essential to the protection of
morals in Tasmania” and arbitrarily interfered with the petitioner’s rights under Article 17 of the ICCPR (right
to privacy)).
247
The Human Rights Committee has continued to recognize and uphold SOGI rights, stating in 2014 that
LGBT persons are part of the “everyone” guaranteed the rights of liberty and security of person, encompassing
“freedom from injury to the body and the mind.” Human Rights Committee, General Comment No. 35 (2014):
Article 9 (Liberty and security of person), ¶ 3, U.N. Doc. CCPR/C/GC/35 (December 16, 2014).
248
See CESCR, Gen. Comm. No. 23 (2016) on the right to just and favorable conditions of work (Article 7 of
the International Covenant on Economic, Social and Cultural Rights), 65(a), U.N. Doc. E/C.12/GC/23 (Apr. 27,
2016); CESCR, Gen. Comm. No. 22 (2016) on the right to sexual and reproductive health (Article 12 of the
International Covenant on Economic, Social and Cultural Rights), 23, U.N. Doc. E/C.12/GC/22 (May 2, 2016);
CESCR, Gen. Comm. No. 20: Non-discrimination in economic, social and cultural rights, U.N. Doc.
E/C.12/GC/20 (July 2, 2009); Gen. Comm. No. 18: The Right to Work (art. 6) ¶ 12(b)(i), U.N. Doc.
E/C.12/GC/18 (Feb. 6, 2006); CESCR, Gen. Comm. No. 15 (2002): The Right to Water, 13 U.N. Doc.
E/C.12/2002/11 (Jan. 20, 2003); CESCR, Gen. Comm. No. 14 (2000): The right to the highest attainable
standard of health, 18 U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).

39

 under “other status.”249 Similarly, the Committee on the Elimination of Discrimination
Against Women has found that states parties “must legally recognize and prohibit such
intersecting forms of discrimination” including where sex and gender intersect with
sexual orientation.250 The Convention on the Rights of the Child,251 the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD),252 and the
Convention on the Rights of Persons with Disabilities253 all find sexual orientation and
gender identity among the prohibited grounds of discrimination under their respective
treaties. All seven of these treaties have been widely ratified¾ranging from 83% to 99%
of all UN Member States254¾evidencing states’ behavior.

249

CESCR, Gen. Comm. No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of
the International Covenant on Economic, Social and Cultural Rights), 32, U.N. Doc. E/C.12/GC/20 (July 2,
2009).
250
CEDAW, Gen. Rec. No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on
the Elimination of All Forms of Discrimination Against Women, CEDAW/C/2010/47/GC.2. Gen. Rec. 28
states:
The discrimination of women based on sex and gender is inextricably linked with other factors that affect
women, such as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation and
gender identity . . . States parties must legally recognize and prohibit such intersecting forms of discrimination
and their compounded negative impact on the women concerned.
See also e.g., CEDAW, General Recommendation No. 19: Violence against women, Addendum, Draft General
Recommendation No. 19 (1992): accelerating elimination of gender-based violence against women,
CEDAW/C/GC/19/Add.1 (July 28, 2016); CEDAW, General recommendation No. 33 on women’s access to
justice, CEDAW/C/GC/33 (Aug. 3, 2015); CEDAW; CEDAW, General Recommendation No. 27 on Older
Women and Protection of Their Human Rights, CEDAW/C/2010/47/GC.1.
251
See Comm. on the Rights of the Child, Gen. Comm. No. 15 (2013) on the right of the child to the enjoyment
of the highest attainable standard of health (art. 24), U.N. Doc. CRC/C/GC/15 (Apr. 17, 2013); Comm. on the
Rights of the Child, Gen. Comm. No. 14 (2013) on the right of the child to have his or her best interests taken as
a primary consideration (art. 3) ¶ 55 U.N. Doc. CRC/C/GC/14 (May 29, 2013); Comm. on the Rights of the
Child, Gen. Comm. No. 13 (2011): The right of the child to freedom from all forms of violence, ¶ 72 (g) U.N.
Doc. CRC/C/GC/13 (Apr. 18, 2011); Comm. on the Rights of the Child, Gen. Comm. No. 4 (2003): Adolescent
health and development in the context of the Convention on the Rights of the Child, ¶ 6 U.N. Doc.
CRC/GC/2003/4 (July 1, 2003); Comm. on the Rights of the Child, Gen. Comm. No. 3 (2003): HIV/AIDS and
the Rights of the Child, ¶ 8 U.N. Doc. CRC/GC/2003/3 (Mar. 17, 2003).
252
While the Committee on the Elimination of Racial Discrimination has not enshrined sexual orientation or
gender identity (SOGI) as protected classes through its general comments as of yet, it has SOGI protected
classes under the Convention through its Concluding Observations to member states. E.g., Comm. on the
Elimination of Racial Discrimination, Concl. Obs. on the combined nineteenth to twenty-second periodic reports
of Germany, ¶ 16, U.N. Doc. CERD/C/DEU/CO/19-22 (June, 30, 2015); Comm. on the Elimination of Racial
Discrimination, Concl. Obs. on the combined nineteenth to twenty-first periodic reports of the Netherlands, ¶ 26
& 34 U.N. Doc. CERD/C/NLD/CO/19-21 (Sept. 24, 2015).
253
Comm. on the Rights of Persons with Disabilities, General comment No. 3 (2016) on women and girls with
disabilities, ¶ 4(c), U.N. Doc. CRPD/C/GC/3 (Nov. 25, 2016); See also Concluding Observations, e.g., Comm.
on the Rights of Persons with Disabilities, Conc. Obs. on the initial report of the Islamic Republic of Iran* ¶
12(b)), 13(c), 19(c), 35(c)), U.N. Doc. CRPD/C/IRN/CO/1 (Apr. 12, 2017).
254
See Generally, United Nations Human Rights Office of the High Commissioner. Status of Ratification
Interactive Dashboard. (Last Updated 8 June 2017) http://indicators.ohchr.org/.

40

 97. In the late 1990s, reports on violence and discrimination committed against LGBTI
individuals began to gain visibility in UN Special Rapporteur reports.255 By 2003, the UN
General Assembly officially recognized sexual orientation as a protected class against
extrajudicial, summary or arbitrary executions through its resolutions.256 Since then, the
Special Rapporteur for this mandate has gone on to call attention to killings committed on
the basis of gender identity and gender expression explicitly, including LGBTI
individuals, as violations of international human rights law.257
98. For the last twenty years numerous UN Resolutions have condemned discrimination
based on sexual orientation or gender identity.258 UN General Assembly resolutions have
also recognized that killing based sexual orientation or gender identity “may under certain
circumstances amount to genocide, crimes against humanity or war crimes, as defined in
international law, including in the Rome Statute of the International Criminal Court.”259
Consequently the General Assembly specifically calls on states “to bring those
responsible to justice before a competent, independent and impartial judiciary at the
national or, where appropriate, international level.”260
99. Like the General Assembly, joint statements and resolutions on LGBTI rights have also
been delivered at the former UN Commission on Human Rights, and at its replacement,
the UN Human Rights Council. On June 17, 2011, the Human Rights Council passed a
resolution on human rights, sexual orientation and gender identity. 261 Supported by 85

255

See, e.g., Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gendersensitive approach to arbitrary killings, U.N. Doc. A/HRC/35/23 (June 6, 2017).
256
U.N. Doc. A/Res/57/214 (Feb. 25, 2003).
257
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive
approach to arbitrary killings, U.N. Doc. A/HRC/35/23 (June 6, 2017).
258
G.A. Res. 67/168, ¶ 6(b), (Mar. 15, 2013). The U.N. General Assembly urges States to “ensure the effective
protection of the right to life of all persons under their jurisdiction, to investigate promptly and thoroughly all
killings, including . . . killings of persons . . . because of their sexual orientation or gender identity.” See also
e.g., G.A. Res. 69/182, ¶ 6(b) (December 18, 2014), GAOR, U.N. Doc. A/Res/69/182 (Jan. 30, 2015); G.A. Res.
67/168, ¶ 6(b) (December 20, 2012), GAOR, U.N. Doc. A/Res/67/168 (Mar. 15, 2013); G.A. Res. 65/208, ¶ 6(b)
(December 21, 2012); GAOR, U.N. Doc. A/Res/65/208 (Mar. 30, 2011); G.A. Res. 63/182, ¶ 6(b) (December
20, 2012); GAOR, U.N. Doc. A/Res/63/182 (Mar. 16, 2009); G.A. Res. 61/173, ¶ 5(b) (December 20, 2012),
GAOR, U.N. Doc. A/Res/61/173 (Mar. 1, 2007); G.A. Res. 59/197, ¶ 8(c), GAOR, U.N. Doc. A/Res/59/197
(Mar. 10, 2005); G.A. Res. 57/214, ¶ 6, GAOR (December 18, 2002).
259
U.N. Doc. A/Res/69/182 at 2, (Jan. 30, 2015).
260
Id. ¶6(b).
261
U.N. Doc. A/HRC/17/L.9/Rev.1; See Press Release, Int’l Gay & Lesbian H.R. Comm., Historic Decision at
the United Nations: Human Rights Council Passes First-Ever Resolution on Sexual Orientation and Gender
Identity (June 17, 2011).

41

 states from all regions of the world, the resolution demonstrates the significant trend in
state support for prohibiting discrimination based on sexual orientation.262
100. That same year, the Organization of American States (OAS) General Assembly passed a
resolution in the Americas condemning violence and discrimination committed on the
basis on sexual orientation or gender identity.263 The OAS also created an LGBTI Unit,
later succeeded by a Special Rapporteurship position on the rights of LGBTI persons,
dedicated to monitoring the human rights situation of LGBTI individuals.264 The InterAmerican Commission on Human Rights has issued eleven precautionary measures for
LGBTI persons, related almost exclusively to violence and death threats perpetrated
against LGBTI activists.265 In 2012, the Inter-American Court of Human Rights
followed suit when it established sexual orientation and gender identity as protected
categories under the American Convention in the case of Atala Riffo and Daughters v.
Chile.266
101. The European Union has also been a longstanding champion of LGBTI rights. The
Charter of Fundamental Rights expressly lists sexual orientation as a ground protected
against discrimination.267 It became binding European Union law in 2009. Following the
European Union’s lead, the Council of Europe Parliamentary Assembly adopted a
262

See U.N. Human Rights Council: A Stunning Development Against Violence, INT’L GAY & LESBIAN H.R.
COMM., (Mar. 23, 2011), This was an increase from 54 states that issued a joint statement in 2006 proclaiming
that existing human rights standards apply to LGBT persons and calling upon the Council to take action. HRC
3rd session. Joint statement on Human Rights violations based on sexual orientation and gender identity,
NORWAY: THE PERMANENT DELEGATIONS IN GENEVA, (December 1, 2006)
263
OAS General Assembly Resolution, AG/RES. 2653 (XLI-O/11), Human Rights, Sexual Orientation and
Gender Identity, HUMAN, (Adopted at the fourth plenary session, held on June 7, 2011). More broadly, the
Resolution condemns violence, harassment, discrimination, exclusion, stigmatization, and prejudice based on
sexual orientation and gender identity.
264
Press Release, Inter-American Commission on Human Rights (IACHR), The IACHR creates Rapporteurship
to address issues of Sexual Orientation, Gender Identity, Gender Expression, and Body Diversity, No. 94/13
(November 25, 2013).
265
See, e.g., MC 457/13 (precautionary measures granted for the members of the “Asociación para una Vida
Mejor de Honduras” who were at risk because of their activities in defense of LGBTI persons in Honduras), PM
155/13 (precautionary measures granted for Caleb Orozco, an LGBTI human rights defender in Belize,
subjected to death threats, harassment and attacks), PM 153/11 (precautionary measures for two unnamed
individuals in Jamaica victimized on account of their sexual orientation).
266
Atala Riffo v. Chile, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 239, (Feb. 24,
2012).
267
Charter of Fundamental Rights of the European Union art. 21(1) 2010 O.J. C 83/02, at 396. In addition to the
protections against sexual orientation discrimination explicit in these treaties, the Court of Justice of the
European Union (“Court of Justice”) has established that discrimination against transgender persons is “sex”
discrimination.267 Moreover, the Court of Justice has held that sexual orientation can be a particular social
group for the purposes of asylum in part because “it is common ground that a person’s sexual orientation is a
characteristic so fundamental to his identity that he should not be forced to renounce it.” Joined Cases C-199/12,
C-200/12 and C-201/12 X, Y and Z v Minister voor Immigratie en Asiel [2013] I-0000.

42

 resolution in 2010 condemning violence and discrimination committed on the basis of
sexual orientation and gender identity. It echoed the European Court’s view that
“negative attitudes on the part of a heterosexual majority against a homosexual minority
cannot amount to sufficient justification for discrimination, any more than similar
negative attitudes towards those of a different sex, origin or colour.”268
102. In 2014, the African Commission on Human and Peoples’ Rights (“African
Commission”) adopted a resolution urging parties to the African Charter on Human and
Peoples Rights to take the necessary measures to prevent and prosecute violence
committed on the basis of real or perceived sexual orientation or gender identity.269 The
Resolution came on the heels of a 2011 decision when a coalition of local and
international organizations led by OutRight Action International, (then known as
IGLHRC)270 successfully lobbied the African Commission to recognize gender and
sexual orientation as prohibited grounds of discrimination in guidelines issued to assist
States Parties in complying with their obligations to protect economic, social and cultural
rights.271
103. The UN High Commission for Refugees (the “UNHCR”) has also recognized the role of
socially constructed gender roles in the persecution of LGBTI refugees. In 2012, it
released guidelines addressing refugee claims based on sexual orientation and gender
identity, recognizing that LGBTI individuals are often persecuted because of “noncompliance with expected cultural, gender and/or social norms and values.”272 The
guidelines further explain that LGBTI individuals are protected as a particular social
group, as well as under the religion and political opinion grounds, under the 1951
Refugee Convention.273 Recently the UNHCR released a report putting forth best

268

Council of Europe Parliamentary Assembly, Resolution 1728 (2010), Discrimination on the basis of sexual
orientation and gender identity ¶ 2 (April 29, 2010) (citing the European Court of Human Right’s 1999
judgment in Lustig-Prean and Beckett v. the United Kingdom).
269
African Commission on Human and Peoples’ Rights (ACHPR), Resolution on the Protection against
Violence and other Human Rights Violations against Persons on the basis of their real or imputed Sexual
Orientation of Gender Identity, Resolution 275, (2014).
270
The International Gay and Lesbian Human Rights Commission (IGLHRC), now known as OutRight Action
International.
271
ACHPR, Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the
African Charter on Human and Peoples’ Rights, ¶ 1(d), (Oct. 24, 2011)
272
U.N. High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 9: Claims to
Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the
1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012, ¶ 14 UN Doc.
HCR/GIP/12/09.
273
Id. ¶ 40.

43

 practices for helping LGBTI refugees in which it attributed “social hostility toward
LGBTI persons . . . to broader contextual factors, such as “patriarchy,” “conservatism,”
“cultural taboos,” “religion,” and/or traditional practices.”274

IV. ALLEGED OFFENSES
A.

The Standar d for Initiating a Pr eliminar y Examination into the Gender -Based
Cr imes Committed by ISIS Has Been Met

104. Based on the existing facts, the OTP should initiate a preliminary examination into ISIS’
gender-based crimes in Iraq. The OTP “will conduct, on the basis of its proprio motu
powers under Article 15 of the Statute, a preliminary examination of all situations that are
not manifestly outside the jurisdiction of the Court” to determine “whether there is a
reasonable basis to proceed with an investigation.”275 The present situation is within the
jurisdiction of the Court, and there is also a reasonable basis for the OTP to continue to an
investigation.
105. In deciding whether to initiate an investigation, the OTP considers whether:
First, there is a reasonable basis to believe that a crime within the jurisdiction
of the Court has been or is being committed;
Second, the case is or would be admissible under Article 17; and
Third, taking into account the gravity of the crime and the interests of victims,
there are nonetheless substantial reasons to believe that an investigation would
not serve the interests of justice.276
106. On the facts presented here, there is reasonable basis to believe that foreign fighters in
ISIS have committed gender-based crimes within the jurisdiction (temporal, material, and
personal) of the Court, that the case would be admissible under Article 17 requirements
(complementarity and gravity), and that an investigation would serve the interests of
justice.
274

U.N. High Commissioner for Refugees (UNHCR), Protecting Persons with Diverse Sexual Orientations and
Gender Identities: A Global Report on UNHCR's Efforts to Protect Lesbian, Gay, Bisexual, Transgender, and
Intersex Asylum-Seekers and Refugees, December 2015, at 15.
275
OTP, Policy Paper on Prelim Examinations, ¶ 2. (November 2013).
276
Rome Statute, Article 53(1)(a)-(c).

44

 B.

Ther e Is a Reasonable Basis to Believe that For eign Fighter s in ISIS Have
Committed Cr imes within the J ur isdiction of the Cour t

107. The legal standard of a “reasonable basis to believe” is the lowest evidentiary standard
available under the Rome Statute.277 Pre-Trial Chamber II found that “[t]his is logical
given that the nature of this early stage of the proceedings is confined to a preliminary
examination. Thus, the information available to the Prosecutor is neither expected to be
‘comprehensive’ nor ‘conclusive,’ if compared to evidence gathered during the
investigation.”278 Therefore, an ICC Pre-Trial Chamber, “in evaluating the available
information provided by the Prosecutor, […] must be satisfied that there exists a sensible
or reasonable justification for a belief that a crime falling within the jurisdiction of the
Court ‘has been or is being committed’.”279 The OTP’s standard in determining whether
to open a preliminary examination should be no higher than the burden the OTP must
meet in seeking authorization for an investigation based on the results of the preliminary
examination.
108. For crimes to fall within the jurisdiction of the Court, the following conditions must be
satisfied: 1. Subject matter jurisdiction, meaning that the crimes are referred to in Article
5, as defined in Articles 6, 7, and 8 of the Rome Statute, 2. Temporal jurisdiction under
Article 11 of the Statute, and 3. Under Article 12, either territorial or personal
jurisdiction.280 Temporal jurisdiction under Article 12 is satisfied here, because the states
with fighters who would be prosecutable by the Court under its personal jurisdiction
requirements ratified the Rome Statute prior to the events in question. As described
herein, ISIS’s crimes of gender-based persecution in Iraq constitute crimes against
humanity under Article 7. Its crimes of torture motivated by gender, sexual orientation
and gender identity discrimination constitute war crimes under Article 8 of the Rome
Statute. These crimes therefore satisfy the Court’s subject matter requirements. While

277

Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the
Situation in the Republic of Kenya, ICC-01/09-19, Pre-Trial Chamber II, 31 March 2010, ¶ 27.
278
Id.
279
Id. ¶ 35.
280
Id. ¶ 39.

45

 Iraq is not a party to the Rome Statute,281 making the Court’s territorial jurisdiction
irrelevant, the crimes committed by foreign ISIS fighters in Iraq from states that ratified
the Rome Statute do meet the Court’s Article 12 personal jurisdiction requirements, as
described below.282
1.

The Court has Subject Matter Jurisdiction over Gender-Based Crimes
ISIS Has Committed in Iraq
a.

Crimes against humanity

109. ISIS has committed well-documented acts of persecution against civilians on the basis
that they did not conform to its prescribed gender roles. These acts meet all of the
constituent elements to establish persecution under Article 7(1)(h), which requires that: (i)
the conduct was part of a widespread or systematic attack directed against a civilian
population; (ii) the perpetrator was aware the persecutory conduct was part of that attack;
(iii) the persecution led to a severe deprivation of fundamental rights; (iv) the victims
were deprived of their rights based on their membership in a group; (v) the group must be
based on certain defined grounds, which include gender; and (vi) the persecutory conduct
was committed in connection with a crime under Article 7 (1) or any other crime
prosecutable by the Court.283
i.

ISIS’s gender-based crimes in Iraq are part of ISIS’s
widespread and systematic attack on the civilian population

110. ISIS’s attack against the civilian population in Iraq is more “widespread,” in terms of the
large-scale nature of the attack and the number of targeted persons284 than others that PreTrial Chamber has accepted as meeting these criteria. In Prosecutor v. Laurent Gbagbo,
for example, the Pre-Trial Chamber found that an attack that left 316 members of the
Ivorian opposition dead or injured was “widespread” because it “involved a large number
281

ICC, State Parties to the Rome Statute, available at: https://asp.icccpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.
(Accessed on October 31, 2017).
282
Rome Statute, Art. 12(2)(b). See also, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19, Pre-Trial Chamber
II, 31 March 2010, ¶ 39.
283
See Rome Statute, Articles 7(1)(h), 7(2)(g); Elements of Crimes, Article 7(1)(h).
284
Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11, Decision on the Confirmation of Charges Against Laurent
Gbagbo, ¶ 222 (June 12, 2014); see Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to
Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba
Gombo, ¶ 83 (June 15, 2009).

46

 of acts; . . . targeted and victimized a significant number of individuals;. . . extended over
a time period of more than four months; and . . . affected the entire city of Abidjan, a
metropolis of more than three million inhabitants.”285
111. ISIS’s attack on civilians has exceeded this standard. ISIS has overrun large swathes of
territory in northern and western Iraq, which, at its peak, included nearly 10 million
people living under ISIS rule.286 ISIS has killed thousands of civilians, and persecuted
many more.287 Its campaign of terror has lasted for years. Whether the Court looks to AlZarqawi’s attacks against civilians under the banner of Jama’at al-Tawhis wal Jiha (JTJ)
in the early 2000s, Al-Qaida in Iraq (AQI)’s terrorist attacks during the 2003 Iraq War,
the reformulation of the group as ISIS in 2013, or al-Baghdadi’s rise to power in 2014,
ISIS has been a formidable force targeting civilians in the region for anywhere from three
years to over a decade.288
112. ISIS’s attack is also part of a systematic policy to attack civilians.289 The policy need not
be formal or explicitly defined:290 “an attack which is planned, directed, or organized—as
opposed to spontaneous or isolated acts of violence—will satisfy this criterion.”291 In
Gaddafi, the Pre-Trial Chamber found that there were reasonable grounds to believe that
there was a “State policy” to quell demonstrations based on a series of coordinated
actions, including acts of the Libyan security forces, speeches of Saif and Muammar
Gaddafi denouncing the opposition, and a threatening mass text message sent via the
state-owned telecommunications system.292 Here, ISIS has again gone one step further –
rather than inferring a policy based on a series of coordinated actions, the Court could
285

Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11, Decision on the Confirmation of Charges Against Laurent
Gbagbo, ¶¶ 204, 224 (June 12, 2014).
286
See e.g. BBC News, Islamic State and the crisis in Iraq and Syria in maps, (July 20, 2017).
287
OHCHR and UNAMI: Protection Report May-October 2015, supra, note 112, at 10.
288
See Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 77 (June 15, 2009)
(“[T]he Prosecutor need not prove that the entire population of the geographical area, when the attack is taking
place, was being targeted.”).
289
“‘Attack directed against any civilian population’ means a course of conduct involving the multiple
commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a
State or organizational policy to commit such attack.” Rome Statute, Articles 7(2)(a). Elements of Crimes,
Article 7, Introduction, para. 3 (“It is understood that ‘policy to commit such attack’ requires that the State or
organization actively promote or encourage such an attack against a civilian population.”).
290
Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of
Charges, ¶ 396 (Sept. 30, 2008).
291
Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 81 (June 15, 2009).
292
See Gaddafi, Case No. ICC-01/11-12, Decision on the “Prosecutor’s Application Pursuant to Article 58 as to
Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi”, ¶¶ 14-31 (June
27, 2011).

47

 look directly to ISIS statements detailing and justifying its attack on civilians. For
example, ISIS has published detailed policies concerning sexual slavery,293 its court
system orders horrific punishments based on real or perceived sexual orientation,294 and it
publishes photos of its victims as propaganda.295 The Pre-Trial Chamber has accepted
such overt statements as evidence of an official policy to attack civilians.296 While the
concepts of “policy” and “systematic” nature of the attack should not be conflated, they
“both refer to a certain level of planning of the attack . . . [and] evidence of planning,
organisation or direction by a State or organisation may be relevant to prove both the
policy and the systematic nature of the attack.”297 Thus, given their organized nature,
ISIS’s acts of violence satisfy the alternative requirement under Article 7(1) of the Statute
that the attack be systematic.
ii.

ISIS fighters have the requisite mens rea

113. ISIS fighters are necessarily aware that their persecutory conduct is part of ISIS’s
widespread and systematic attack on the civilian population in Iraq. The Elements of
Crimes states that this element “should not be interpreted as requiring proof that the
perpetrator had knowledge of all characteristics of the attack or the precise details of the
plan or policy of the State or organization.”298 The perpetrators’ awareness that their
conduct is part of an attack may be inferred from circumstantial evidence.299 Given that
ISIS publicizes its policy of attacking civilians as a recruiting tool, it would be highly
unlikely that even low-level perpetrators would not aware of ISIS’s widespread and
systematic attack on civilians.

293

See Kenneth Roth, Slavery: The ISIS Rules, Human Rights Watch, (September 5, 2015),
https://www.hrw.org/news/2015/09/05/slavery-isis-rules.
294
OutRight Action International, supra, note 174.
295
Id.
296
See Ruto, Case No. ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a)
and (b) of the Rome Statute, ¶¶ 273-74 (finding that speeches by officials and orders by midlevel organizers
urging members of a political party to attack the opposition constituted evidence of an official policy to attack
civilians).
297
Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11, Decision on the Confirmation of Charges Against Laurent
Gbagbo, ¶ 216.
298
Elements of Crimes, Article 7, Introduction, para. 2. See also Prosecutor v. Gbagbo, Case No. ICC-02/1101/11, Decision on the Confirmation of Charges Against Laurent Gbagbo, ¶ 214 (June 12, 2014). (“[I]t is only
necessary to establish that the person had knowledge of the attack in general terms.”).
299
Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of
Charges, ¶ 402 (Sept. 30, 2008) (such evidence may be “the accused's position in the military hierarchy; his
assuming an important role in the broader criminal campaign; his presence at the scene of the crimes; his
references to the superiority of his group over the enemy group; and the general historical and political
environment in which the acts occurred.”)

48

 iii.

ISIS’s persecutory conduct has caused severe deprivations
of fundamental rights

114. ISIS’s persecutory conduct has resulted in the “intentional and severe deprivation of
fundamental rights contrary to international law by reason of the identity of the group or
collectivity.”300 For instance, in Prosecutor v. Kenyatta, the Pre-Trial Chamber found that
a series of “killings, displacement[s], rape[s], serious physical injuries, and acts causing
serious mental suffering . . . constitute[d] severe deprivations of fundamental rights.”301
There, the OTP had alleged acts of violence that “resulted in more than 1,100 people
dead, 3,500 injured, approximately 600,000 victims of forcible displacement, [and] at
least hundreds of victims of rape and sexual violence.”302 ISIS has committed atrocities
on a similar scale. ISIS fighters have blatantly and intentionally violated fundamental
rights of thousands of civilians, including the rights to life, liberty, and security of person,
as well as the rights to be free from slavery and torture.303 Indeed, Ján Kubiš, the Special
Representative of the United Nations Secretary-General for Iraq, reported in August 2016
that, among the Yazidi community, “[t]housands of men, women and children have been
killed or are missing, or remain in captivity where they are subjected to unspeakable
sexual and physical abuse.”304
iv.

ISIS fighters persecute their victims based on their
membership in a group defined by their gender, targeting
those who do not conform with ISIS’s strict gender
regulations on social behavior

115. ISIS deprived its victims of their fundamental rights based on their membership in a
group defined by their gender. The Pre-Trial Chamber has found a nexus between the
deprivation of rights and the group’s identity from a pattern of acts committed against a
covered group. In Prosecutor v. Harun, the Pre-Trial Chamber found “reasonable
grounds to believe” that the Sudanese government had persecuted the ethnic Fur people
of Darfur on the basis of evidence “that the Sudanese Armed Forces and the
300

Rome Statute, Art. 7(2)(g).
Prosecutor v. Kenyatta, Case No. ICC-01/09-02/11, Decision on Confirmation of Charges Pursuant to Article
61(7)(a) and (b) of the Rome Statute, ¶ 283 (January 23, 2012).
302
Prosecutor v. Kenyatta, Case No. ICC-01/09-31-Red, Prosecutor’s Application Pursuant to Article 58 as to
Francis Kirimi Muthaura, Uhuru Muigai Kenyatta & Mohammed Hussein Ali, ¶ 9 (Dec. 15, 2010).
303
G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
304
UNAMI & OHCHR, A Call for Accountability and Protection: Yezidi Survivors of Atrocities Committed by
ISIL, at 3, (August 2016).
301

49

 Militia/Janjaweed launched attacks against specific localities believing that they were
predominantly inhabited by the Fur population.”305 ISIS has committed a pattern of
atrocities against women and girls, including torture and sexual slavery. In addition to
these targeted attacks, ISIS has explicitly incorporated sexual and gender-based violence
into its ideology to further its policy of gendered persecution.
116. ISIS’s persecution of based on membership in a group defined by gender includes acts
targeting individuals who do not conform with ISIS’s strict gender-based regulations on
social behavior. The Rome Statute is unique among the frameworks of the international
criminal tribunals in expressly prohibiting gender-based persecution.306 The definition of
“gender” under Article 7(3) applies to individuals persecuted for defying their prescribed
gender roles. Article 7(3) states: “For the purpose of this Statute, it is understood that the
term ‘gender’ refers to the two sexes, male and female, within the context of society. The
term ‘gender’ does not indicate any meaning different from the above.” As the OTP has
recognized, “this definition acknowledges the social construction of gender, and the
accompanying roles, behaviours, activities, and attributes assigned to women and men,
and to girls and boys.”307 Accordingly, the OTP has defined gender-based crimes as
“those committed against persons, whether male or female, because of their sex and/or
socially constructed gender roles. Gender-based crimes are not always manifested as a
form of sexual violence. They may include non-sexual attacks on women and girls, and
men and boys, because of their gender.”308

305

Prosecutor v. Harun, Case No. ICC-02/05-01/07, Decision on the Prosecution Application Under Article
58(7) of the Statute, ¶¶ 74-75 (Apr. 27, 2007). See also Prosecutor v. Simone Gbagbo, Case No. ICC-02/1101/12, Decision on the Prosecutor’s Application Pursuant to Article 58 for a Warrant of Arrest Against Simone
Gbagbo ¶ 204 (2 Mar. 2012) (finding “substantial grounds to believe” that at least 316 victims of killings, rapes,
and injuries by pro-government forces had been targeted because the victims were members of the
opposition);Prosecutor v. Blé Goudé, Case No. ICC-02/11-02/11, Decision on the Confirmation of Charges
Against Charles Blé Goudé ¶ 122 (11 Dec. 2014)] (finding “substantial grounds to believe that at least 348
victims of the killings, rapes and injuries committed by the pro-Gbagbo forces . . . were targeted by reason of
their [political] identity” on the basis of “the facts . . . that during the five events under consideration, the proGbagbo forces targeted participants at pro-[opposition] demonstrations, or inhabitants of areas perceived as
supporting [the opposition]”).
306
Compare Rome Statute, art. 7(1)(h) with Charter of the International Military Tribunal art. 6, The Agreement
for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 82
U.N.T.S. 279; Charter of the International Military Tribunal for the Far East art. 5, Apr. 26, 1946, 4 Bevans 27
(replacing the original Charter, Jan. 19, 1946, 4 Bevans 20); Statute of the International Criminal Tribunal art.
5(h), May 25, 1993, 32 I.L.M. 1192 (1993) (“ICTY Statute”); Statute of the International Criminal Tribunal for
Rwanda art. 3 Nov. 8, 1994, 22 I.L.M. 1602 (1994) (“ICTR Statute”).
307
OTP, Policy Paper on Sexual and Gender-Based Crimes, ¶ 12 (June 2014).
308
Id. ¶ 16.

50

 117. Legal commentators support this view, noting that “[i]t is significant that both biological
sex and social gender constructs are identified as relevant motivations, as it means that
the concept of ‘gender violence’ is broad enough to include both violence which targets
women and men in different ways on the basis of their sex and violence which targets
women or men as punishment for not complying with their assumed or assigned social
gender roles. The definition used by the Office of the Prosecutor also emphasizes that
gender violence is not synonymous with sexual violence, and may manifest itself in other,
non-sexual forms against both women and girls and men and boys.”309
118. The ad hoc tribunals have also taken gender roles into account in persecution cases, even
without express provision for gender-based persecution in their charters. In Akayesu, for
example, the ICTR Trial Chamber drew a clear link to the physical and psychological
targeting of women within “their families and their communities” as “contributing to their
destruction and to the destruction of the Tutsi group as a whole.”310 In Nahimana, the
portrayal of Tutsi women as “femmes fatales . . . seductive agents of the enemy” in local
media was considered an act of “targeted . . . persecution” because it “made the sexual
attack and killing of Tutsi women a foreseeable consequence of the role attributed to
them”—demonstrating that even without the express legal basis to consider gender as a
basis of persecution, gender roles within society have been considered in the persecution
context.311 Finally, in Kvočka, the Trial Court held that holding women “in detention,
guarded by men with weapons who were often drunk, violent, and physically and
mentally abusive and who were allowed to act with virtual impunity,” made rape and
sexual violence “natural or foreseeable consequences” of putting those women in
“circumstances rendering them especially vulnerable.”312 While defendant Kvočka’s
sentence was ultimately overturned on evidentiary grounds, the Appeals Chamber took
the opportunity to clarify that a finding of discriminatory intent is not voided by personal

309

Otto Triffterer, COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, 293 (2d.
ed. 2008); See also Valerie Oosterveld, Gender, Persecution, and the International Criminal Court: Refugee
Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution, 17 DUKE J. COMP. & INT’L L.
49, 78-79 (2006-2007) (“If crimes against men who are targeted because of their gender are not charged as
gender-based persecutions. . .this results in the creation of a ‘male experience’ of persecution and a ‘female
model,” with the female model overemphasizing sexual violence at the expense of other forms of repression.”)
(hereinafter “Oosterveld, Gender, Persecution and the ICC”).
310
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment ¶ 731 (Sept. 2, 1998) (targeting Tutsi women for
sexual violence was an act of genocide against the Tutsi group as a whole).
311
Prosecutor v. Nahmana, Case No. ICTR-99-52-T, Judgment ¶ 1079 (Dec. 3, 2003).
312
Prosecutor v. Kvočka, Case No. IT-98-30/1-T, Judgment ¶ 327 (Nov. 2, 2001).

51

 motivations to commit sexual crimes.313 The ad hoc tribunal jurisprudence illustrates the
role and definition of gender in the context of persecution as a crime against humanity,
and further supports the OTP’s conclusion that gender as defined in Article 7(3)
encompasses socially constructed roles and norms.
119. ISIS’s persecutory conduct towards Yazidi women and girls should also be charged as
gender-based persecution in connection with other forms of persecution. While Yazidi
women and girls may have been targeted based on the intersection of their gender and
ethnic identities, rather than their gender or ethnic identification alone, they constitute
gender-based persecution and should be considered as such. Indeed, “an intersectional
perspective is required to fully comprehend the implications of those crimes[.]”314
Gender-based persecution is currently underrepresented in the OTP’s charging decisions;
thus far, the OTP has charged gender-based persecution in only one of the twenty-three
cases that have come before the Court, whereas “ethnic and political persecution has been
charged nine times, including in cases where there is strong evidence of mass rape”
targeting only women.315
120. The definition of “gender” under Article 7(3) may also apply to individuals persecuted on
the basis of their real or perceived sexual orientation or gender identity where associated
behavior or acts are seen to violate traditional gender roles. While the ICC has not yet
addressed this issue, pursuant to Article 21(3), the OTP will look to internationally
recognized human rights in interpreting and applying the definition of gender under
Article 7(3). The OTP has recognized that sexual orientation is a factor that it will
consider in this context: stating that it will seek to “[u]nderstand the intersection of factors
such as gender, age, race, disability, religion or belief, political or other opinion, national,
ethnic, or social origin, birth, sex, sexual orientation, and other status or identities which
may give rise to multiple forms of discrimination and social inequalities.”316 Similarly, as
an example of “internationally recognised human rights, including those relating to
women’s human rights and gender equality,” the OTP highlighted “the efforts of the UN
Human Rights Council and the Office of the High Commissioner for Human Rights
313

Prosecutor v. Kvočka, Case No. IT-98-30/1-A, Judgment on Appeal, ¶¶ 369-370 (Feb. 28, 2005).
Emily Chertoff, Prosecuting Gender-Based Persecution: The Islamic State at the ICC, 126 Yale L.J. 1050,
1070 (2017).
315
Id. See, e.g., Thomas Escritt, Sex Crimes in Focus at Hague Trial of Ugandan Rebel Commander, REUTERS
(December 2, 2016) (reporting strong evidence of mass rape of women in conflicts in the DRC, Uganda, and the
Darfur region of Sudan).
316
OTP, Sexual and Gender-Based Crimes, supra, note 307, ¶ 27 (emphasis added).
314

52

 (OHCHR) to put an end to violence and discrimination on the basis of sexual orientation
or gender identity.”317 The OTP also noted that “[i]t is important to view different types
of discrimination as a totality, and not in isolation, as they can overlap with one another”,
citing the Committee on the Elimination of Discrimination against Women (“CEDAW”)
General Recommendation No. 28, which notes that, “[t]he discrimination of women
based on sex and gender is inextricably linked with other factors that affect women, such
as race, ethnicity, religion or belief, health, status, age, class, caste, and sexual orientation
and gender identity.”318
121. The Court has also indicated that sexual orientation is a factor that it will consider
pursuant to Article 21(3). Trial Chamber I determined that, consistent with international
human rights law and international humanitarian law, the non-discrimination principle
applied so that “reparations shall be granted to victims without adverse distinction on the
grounds of gender, age, race, colour, language, religion or belief, political or other
opinion, sexual orientation, national, ethnic or social origin, wealth, birth or other
status.”319
122. Moreover, international refugee law, which the Court may consider pursuant to Article
21(3), has recognized that gender-based persecution includes discrimination based on
sexual orientation.320 While refugee law cannot serve as the basis of a criminal conviction
without violating the principles of legality,321 it can shed light on the definition of gender
within the ICC framework. As no other international criminal tribunal has expressly
included gender-based persecution within its framework, turning to international refugee
317

Id. ¶¶ 26 n.3, 27. Specifically, the OTP cited the Free & Equal Initiative of the OHCHR at
https://www.unfe.org/ and statement of 26 September 2013 by the High Commissioner for Human Rights,
Navanethem Pillay, and several world leaders to end violence and discrimination against lesbian, gay, bisexual,
and transgender (LGBT) persons at https://www.unfe.org/en/actions/ministerial-meeting.” Id. ¶ 26 n.23.
318
Id. ¶ 27 n.25 (citing CEDAW, General recommendation No. 28 on the core obligations of States Parties
under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women ¶ 18)
(emphasis added).
319
Prosecutor v. Thomas Lubanga Dyilo, Decision Establishing The Principles And Procedures To Be Applied
To Reparations, ICC-01/04-01/06-2904, para. 191 (citing United Nations Basic Principles and Guidelines on the
Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law, U.N. General Assembly, Resolution A/RES/60/147, 21
March 2006, principle 25 (“The application and interpretation of these Basic Principles and Guidelines must be
consistent with international human rights law and international humanitarian law and be without any
discrimination of any kind or on any ground, without exception.”)) (emphasis added).
320
GUIDELINES ON INTERNATIONAL PROTECTION: Gender-Related Persecution Within the Context of Article
IA(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, U.N. High Comm’r
for Refugees, ¶¶ 14-17, U.N. Doc. HCR/GIP/02/01 (“UNHCR Gender Guidelines”); see also James D. Wilets,
Conceptualizing Private Violence Against Sexual Minorities as Gendered Violence: An International and
Comparative Law Perspective, 60 ALB. L. REV. 989, 1046 n.237 (1997).
321
Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment, ¶ 589 (14 Jan. 14 2000).

53

 law is consistent within the guidance of Article 21. By July 17, 1998, when the Rome
Statute was adopted by 120 states, international refugee law had “acknowledged genderrelated forms of persecution,” which “influenced the drafters of the Rome Statute to
include gender within the list of persecutory grounds in the crimes against humanity
provision.”322 The UNHCR 2002 Guidelines on International Protection: Gender-Related
Persecution includes a similar definition of gender as does Article 7(3).323 The UNHCR
Guidelines specify that discrimination on the grounds of sexual orientation can amount to
persecution because “the claimant has refused to adhere to socially or culturally defined
roles or expectation of behavior attributed to his or her sex.”324
123. Additionally, as discussed in further detail in Section (IV)(E) the persecution of victims
based on their real or perceived sexual orientation or gender identity may be taken into
consideration by the Court in assessing gravity.
v.

ISIS’s persecutory conduct was committed in connection
with other international crimes recognized under the Rome
Statute

124. ISIS’s gender-based crimes easily satisfy the requirement that they be committed in
connection with other international crimes recognized under the Rome Statute. In
persecuting civilians based on their gender, including targeting individuals who do not
conform with ISIS’s strict gender regulations on social behavior, including their real or
perceived sexual orientation or gender identity, ISIS has committed war crimes and
crimes against humanity,325 including, but not limited to: murder,326 forcible
displacement,327 torture,328 sexual slavery,329 imprisonment,330 rape,331 forced
322

Oosterveld, Gender, Persecution, and the International Criminal Court, supra, note 309, at 50-51.
UNHCR Gender Guidelines, supra, note 320, at ¶ 3 (defining gender as “the relationship between women
and men based on socially or culturally constructed and defined identities, status, roles and responsibilities that
are assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but
acquires socially and culturally constructed meaning over time.”).
324
UNHCR Gender Guidelines, supra, note 320, at ¶ 16.
325
The conflict in Iraq is generally considered an armed conflict of a non-international character between the
Iraqi Government, supported by international forces on the one hand, and non-state armed groups, particularly
ISIS, on the other. The participation of international forces does not change the non-international character of
the conflict since these forces became involved in support of the Iraqi Government. As such, war crimes, as
well as crimes against humanity, are discussed jointly.
326
Rome Statute arts. 7(1)(a) and 8(2)(c)(i).
327
Id. art. 7(1)(d).
328
Id. arts. 7(1)(f) and 8(2)(c)(i).
329
Id. arts. 7(1)(g) and 8(2)(e)(vi).
330
Id. art. 7(1)(e).
323

54

 pregnancy,332 sexual violence,333 and cruel, inhuman & degrading treatment.334 This does
not preclude other charges not listed here, such as genocide, which may have a number of
gender-based underlying offenses and which the facts would also support, but which have
been the subject of other submissions to the Court.335
125. To the extent that ISIS’s gender-based persecutory conduct constitutes other international
crimes under the Rome Statute, the OTP should bring cumulative charges. The OTP has
indicated its willingness to bring cumulative “charges for sexual and gender-based crimes
explicitly as crimes per se, in addition to charging these acts as forms of other violence
within the Court’s subject-matter jurisdiction, where the material elements are met . . . in
order to reflect the severity and multi-faceted character of these crimes fairly, and to
enunciate their range supported by the evidence in each case.”336 The OTP “will also
charge acts of sexual and gender-based crimes as different categories of crimes . . . in
order to properly describe, inter alia, the nature, manner of commission, intent, impact,
and context.”337 As Professor Rhonda Copelon has explained, cumulative charges are
particularly important in the context of gender-based offenses because “[i]t makes a
difference, to the elements that must be proved, to the penalty imposed, and to the larger
cultural understanding of violence against women, to treat rape as torture rather than
humiliation.” 338 She emphasized that those engaged in the process of drafting the Rome
Statute found it critical to insist “as a matter of the principle of non-discrimination, that
sexual violence be treated as constituting any of the recognized crimes so long as it met
their elements, at the same time as it was necessary to name the sexual violence crimes
specifically.”339
b.

War crimes

126. To find that an individual has committed the war crime of torture under Article 8(2)(c)(i)4 of the Rome Statute, the Court must find 1. that the victims were civilians or other
331

Id. arts. 7(1)(g) and 8(2)(e)(vi).
Id. art. 7(1)(g).
333
Id. arts. 7(1)(g) and 8(2)(e)(vi).
334
Id. art. 8(c)(i)
335
See, e.g., Yazda, Mass Graves of Yazidis Killed by the Islamic State Organization or Local Affiliates on or
After August 3, 2014, January 28, 2016; U.N. General Assembly, Joint written statement, supra, note 22.
336
OTP, Sexual and Gender-Based Crimes, supra, note 307, ¶ 72.
337
Id. ¶ 73.
338
Rhonda Copelon, Gender Crimes as War Crimes: Integrating Crimes Against Women into International
Criminal Law, 46 MCGILL L.J. 217, 234 (2000).
339
Id.
332

55

 actors not taking part in active hostilities, 2. that the perpetrator was aware of factual
circumstances establishing this status, 3. that the conduct was in the context of and
associated with an internal armed conflict of which the perpetrator was aware, 4. that the
“perpetrator inflicted physical or mental pain or suffering upon one or more persons,” and
5. that they did so “for such purposes as obtaining information or a confession,
punishment, intimidation or coercion or for any reason based on discrimination of any
kind.”340 As described above in Section III(D)(3), the historical record on the Rome
Statute’s drafting, and developments under customary international law make plain that
the element “discrimination of any kind” includes discrimination based on gender,
including sexual orientation and gender identity. ISIS’ crimes of torture motivated by
gender discrimination in Iraq meet these five standards.
127. First, it is well documented that ISIS targeted civilians not participating in active
hostilities. UN experts have found that ISIS forces have killed thousands of civilians, and
persecuted many more.341 As detailed in Sections III(C) and III(D), ISIS’ victims of
gender-motivated crimes included women professionals kidnapped from their homes,
civilian women and girls captured as the group seized territory, as well as male and
female civilians living under ISIS control who did not conform to the group’s gendered
restrictions on appearance and movement, or whom ISIS militants presumed were
LGBTI.342
128. Second, ISIS militants possessed the requisite mens rea with regard to the civilian status
of victims. Again, the evidence in Sections III(C) and III(D) make plain that ISIS
perpetrators were aware that the victims of their gender-based crimes were civilians or
otherwise not engaged in active hostilities. Fighters and militants seized victims from
their homes, attacked and tortured unarmed individuals on the street, and tortured
detainees. They also searched civilians’ phone communications and civilian government
records in order to find and target civilians its fighters presumed to be LGBTIQ,343
indicating an intentional pattern and practice of seeking out civilians to target for violence
on the basis of sexual orientation or gender identity.

340

ICC, Elements of the Crime, War Crime of torture, art. 8 (2) (c) (i)-4.
OHCHR and UNAMI: Protection Report May-October 2015, supra, note 112.
342
Supra, Sections III(C)(2) and III(D)(2).
343
Supra, Sections III(C)(2) and III(D)(2).
341

56

 129. Third, ISIS militants committed war crimes in the context of and associated with an
internal armed conflict of which they were aware. An armed conflict is internal, or not of
an international character, when it “take[s] place in the territory of a State when there is
protracted armed conflict between governmental authorities and organized armed groups
or between such groups.”344 The Court has found that “the involvement of armed groups
with some degree of organisation and the ability to plan and carry out sustained military
operations would allow for the conflict to be characterised as an armed conflict not of an
international character.”345 It provides a non-exhaustive, flexible list of factors potentially
relevant to determining if a body is an organized arm group, including “the force or
group’s internal hierarchy; the command structure and rules; the extent to which military
equipment, including firearms, are available; the force or group’s ability to plan military
operations and put them into effect; and the extent, seriousness, and intensity of any
military involvement.”346 Intensity, which is relevant for distinguishing an armed conflict
from, for example, banditry or short-lived, disorganized insurrections, can be established
by “the seriousness of attacks and potential increase in armed clashes, their spread over
territory and over a period of time, the increase in the number of government forces, the
mobilisation and the distribution of weapons among both parties to the conflict, as well as
whether the conflict has attracted the attention of the UN Security Council, and, if so,
whether any resolutions on the matter have been passed.”347
130. The nature of ISIS’ presence in Iraq clearly meets these standards. ISIS is an organized
armed group, with an internal hierarchy and command structure as detailed in Section
II(B), and it has carried out sustained, protracted military operations within Iraq. As
described in Section III(A), ISIS rapidly swept territory in western Iraq throughout 2013
and 2014, establishing a state-like bureaucracy that included control of the education
system, strict legal and religious codes, taxes on residents, and provision of some basic
services.348 It ultimately overran large swathes of territory in northern and western Iraq,

344

Rome Statute Art. 8(2)(f).
Prosecutor v. Lubanga, ICC-01/04-01/06 ¶ 535, (citing ICC-01/04-01/06-803-tEN, para. 233.)
346
Prosecutor v. Lubanga, ICC-01/04-01/06 ¶ 537.
347
Prosecutor v. Lubanga, ICC-01/04-01/06 ¶ 538, (citing ICTY, Prosecutor v. ðorñević, Case No. IT-05-87/1T, Trial Chamber, Public Judgment with Confidential Annex – Volume I of II, 23 February 2011, para. 1522.)
348
While it is clear that ISIS controlled significant territory in Iraq and that it operated with an explicit military
hierarchy, the Court does not require that a group establish territorial control or be “under responsible
command” in order to find it constitutes an armed group within the meaning of this element. Prosecutor v.
Lubanga, ICC-01/04-01/06 ¶ 536.
345

57

 which, at its peak, included nearly 10 million people living under ISIS rule.349 Only in
October of 2017 did Iraqi forces report that they may be witnessing “the beginning of the
end” of ISIS control of significant parts of Iraq, after a nine month-long battle to route the
group from Mosul, followed by significant military action to eliminate it from Hawija.350
The UN Security Council has provided sustained attention to ISIS presence in Iraq,
including multiple arias,351 and a recent resolution establishing an investigative team to
collect evidence of ISIS’ potential war crimes and crimes against humanity in Iraq.352 Its
contribution to the regional refugee crisis also makes clear the intensity and seriousness
of military engagement with ISIS in Iraq. As of 2015, it was estimated that ISIS is
responsible for displacing over 3.3 million people in Iraq.353
131. Regarding mens rea within this element, it is highly unlikely that any ISIS militants in
Iraq were unaware of ISIS’ engagement in an ongoing internal armed conflict. ISIS’ 2014
battlefield successes attracted thousands of foreign fighters to join its military campaign
to establish a “caliphate” under its military leader.354 ISIS perpetrators’ mens rea is
further cemented by the nexus between their gender-motivated crimes and the ongoing
armed conflict. ISIS’ written policies promoted acts of gender-based violence, in a
manner explicitly linking these acts to armed violence and territorial control. For
example, as described in Section III(C)(1), fighters received explicit instructions on how
to commit further acts of gender-based violence against women and girls its fighters
captured and enslaved. ISIS’ written policy also prescribes acts of physical violence,
including beatings and lashings, against anyone not adhering to its gendered dress,
movement and behavior restrictions in areas under its control, which were acquired
through armed action.355
132. Fourth, ISIS inflicted severe mental and physical suffering and pain on multiple persons
in its commission of gender-based crimes, as detailed in Sections III(C) and III(D).
349

See e.g. BBC News, supra, note 286.
Dave Zucchino, ‘Game Over.’ Iraqi Forces See Beginning of the End for ISIS, N.Y. TIMES (October 6,
2017).
351
U.N. Security Council, Res. 2249, U.N. Doc. S/RES/2249 (2015); U.N. Security Council, Res. 2299, U.N.
Doc. S/RES/229 (2016); See also, Jessica Stern, The U.N. Security Council’s Arria-Formula Meeting on
Vulnerable Groups in Conflict: ISIL’s Targeting of LGBTI Individuals, 48 Int’l Law and Politics 1191(2016).
352
U.N., Press Release, Security Council Requests Creation of Independent Team to Help in Holding ISIS
(Da’esh) Accountable for its Actions in Iraq, SC/12998 (September 21, 2017)
353
Orlando Crowcroft, Isis: Worst Refugee Crisis in a Generation as Millions Flee Islamic State in Iraq and
Syria, INTERNATIONAL BUSINESS TIMES (June 17, 2015).
354
Laub, supra, note 29; Stanford University, supra, note 29.
355
Supra, Section III(C)(1).
350

58

 133. Fifth, Sections III(C) and III(D) also make plain that ISIS committed these acts on the
basis of gender discrimination.
2.

The Court has Personal Jurisdiction over Foreign Fighters in ISIS
Operating in Iraq

134. Article 12(2)(b) of the Rome Statute establishes that the Court has personal jurisdiction
over alleged crimes committed by nationals of State Parties to the Statute who are natural
persons (commander or subordinate) and at least 18 years old at the time of the alleged
conduct.
a.

ISIS has a policy of recruiting foreign fighters

135. ISIS recruits foreign fighters to implement and execute acts that have terrorized
individuals around the globe in recent years. In a speech in 2014, Abu Bakr al-Baghdadi
called on Muslims to travel from around the globe to “the land of Islam,” claiming it was
a religious obligation.356 He called particularly for “scholars, [Islamic legal experts] and
callers, especially the judges, as well as people with military, administrative, and service
expertise, and medical doctors and engineers of all different specializations and fields.”357
136. As of December 2015, researchers estimated that “between 27,000 and 31,000 people
have traveled to Syria and Iraq to join the Islamic State and other violent extremist groups
from at least 86 countries.”358
137. By 2015, these foreign fighters were documented as coming in the hundreds and
thousands, primarily from the following countries359:

356

Jessica Stern & J.M. Berger, ISIS and the Foreign-Fighter Phenomenon: Why Do People Travel Abroad to
Take Part in Somebody Else’s Violent Conflict?, THE ATLANTIC (March 8, 2015).
357
Id.
358
The Soufan Group: Foreign Fighters Update, supra, note 50; See also Cameron Glenn, ISIS Losses by the
Numbers, WILSON CENTER: THE ISLAMISTS (March 25, 2016) (estimating that as of early 2016, ISIS had an
estimated 25,000 foreign fighters).
359
Glenn, ISIS Losses, supra, note 358.

59

 138. ISIS recruits foreign fighters through the use of social media, family and friends,360 and
its efforts became better organized and more effective with the passage of time.361 “ISIS
propaganda and messaging is disproportionately slanted toward foreign fighters, both in
its content and its target audience[,]” according to investigative journalists writing for The
Atlantic in 2015. They added, “[i]mportant ISIS messages are commonly released
simultaneously in English, French, and German, then later translated into other languages,
such as Russian, Indonesian, and Urdu.”362 Within the first year of ISIS’s control of Iraqi
territories, the number of foreign fighters grew rapidly, as reflected in the chart below:363

360

The Soufan Group: Foreign Fighters Update, supra, note 50.
Id. at 13
362
Stern & Berger, supra, note 355.
363
The Soufan Group: Foreign Fighters Update, supra, note 50, at 20.
361

60

 139. The investigative journalists found that ISIS specifically sought foreigners who were
already radicalized, as opposed to “the al-Qaeda model of attracting fighters first and
radicalizing them later.” They added, “[w]ith its heady media mix of graphic violence and
utopian idylls, ISIS sought recruits and supporters who were further down the path toward
ideological radicalization or more inclined by personal disposition toward violence.”364
140. Many foreign fighters join ISIS in search for “belonging, purpose, adventure, and
friendship.”365 At times, foreign fighters are lured to join ISIS based on false promises or
expectations.366
141. Researchers have found that for most foreign fighters, the decision to join ISIS is driven
by emotions instead of rationale, with familial and societal influences playing an
important role in the radicalization process.367 This means that clusters of susceptible
youth are likely to be influenced by closer personal contacts who decide to join.368
b.

Foreign fighters occupy leadership roles in ISIS

142. Many foreign fighters do not inform their families of their decision to join ISIS, and
sometimes these families learn of such involvement only when that individual dies.369
This has contributed to uncertainty in calculating the number of foreign fighters that have
joined ISIS and, of equal importance, the leadership roles that these foreign fighters play.
143. Foreign fighters are costly, yet essential to ISIS and primarily fall into three groups:
leaders, fighters, and support personnel.370 Foreign fighters typically “draw higher

364

Stern & Berger, supra, note 356 (“ISIS has crafted a novel formula for mixing brutal violence with the
illusion of stability and dignity, and it has moved the bar for recruits. Its combination of successful ground
strategy, aggressive messaging, and an appeal to strength over weakness has proven uniquely powerful and
energized at least tens of thousands of ardent supporters.”).
365
The Soufan Group: Foreign Fighters Update, supra, note 50, at 6. See also Stern & Berger, supra, note 356
(“Internal motives stem from what an individual wants or needs for himself, in terms of the perceived benefits of
membership in an extremist group, such as a feeling of belonging, escape into a new identity, adventure, or
money. Foreign fighters have personal needs that are met by joining an organization, and those personal needs
may become more important over time.”).
366
For example, Mohammad Ahmad Al Achrini, a Jordanian fighter who confessed he was fooled by ISIS Iraqi
leader Abu Mariam Al-Iraqi in February 2014 into thinking he was fighting against PKK (the Kurdish party) in
Syria while he was actually fighting against soldiers of the Free Syrian Army. Muqātl Urdunni Yrwi
Tajribatuhu ma’ “Dā’sh” (fydiyu)[Jordanian Fighter Tells of His Experience With ISIS (Video)], AL-BAWṢLA
(Feb. 1, 2014).
367
The Soufan Group: Foreign Fighters Update, supra, note 50, at 10.
368
Id.
369
Richard Barrett, Foreign Fighters in Syria, at 12, SOUFAN GROUP (2014).
370
Arie Perliger & Daniel Milton, From Cradle to Grave: The Life Cycle of Foreign Fighters in Iraq and Syria,
at 37-38 COMBATING TERRORISM CENTER AT WEST POINT (2016).

61

 salaries and live in nicer homes than local fighters.”371 When foreign fighters join ISIS,
they undergo tailored military training to prepare for battle, learn ISIS’ command
structure, and adopt principles of “Islamic State” law.372
144. ISIS relies heavily on foreign fighters to maintain and expand its operations, particularly
in key leadership positions. For example, Tarkhan Taumurazovich Batirashvili, (“Umar
Shishani”), a Georgian national and “Syrian-based senior military commander” for ISIL,
served on ISIS’ Shura Council373 from mid-2014 until his death in May 2016374 where he
“[l]ed approximately 1,000 foreign fighters” and “committed a number of attacks in
northern Syria.”375 Other Georgian-born ISIS fighters, particularly Chechen fighters from
the Pankisi Gorge region, are particularly prominent in ISIS’ leadership structure, as they
are able to utilize their military experience to further ISIS’ aims.376
145. German nationals have also advanced to leadership positions in ISIS. Reda Seyam joined
ISIS and soon became “an important facilitator, financier, and recruiter for foreign
fighters in Bosnia and Chechnya.”377 He also recruited other German nationals and helped
them get to Syria.378 Most notably however, Seyam served as a high-ranking deputy to
ISIS’ governor in Aleppo and currently “serves as IS’s minister of education in
Mosul.”379
146. Abedlhamid Abaaoud, the orchestrator of the November 2016 Paris attacks, “was a
Belgian citizen who had fought with IS in Syria.” He also “served as a link ‘between IS’s
operations in Syria and its pool of would-be recruits and returnee fighters in Europe.’”
Abaaoud led the Islamic State’s local cell in Paris and directly supervised IS soldiers.380

371

Id. at 34.
Id. at 37 (“Based on interviews with both current and former members of the Islamic State, such training
camps can last from two weeks to over a year and include religious courses, weapons training, and other
preparation for participation in the caliphate.”).
373
Press Release, U.N. Security Council, Security Council Al-Qaida Sanctions Committee Adds Four Names to
Its Sanctions List, U.N. Press Release SC/11750 (January 23, 2015).
374
Luke Coffey, Abu Omar al-Shishani: Death of an ISIL Commander, AL JAZEERA (March 10 2016).
375
U.N. Security Council: Press Release, supra, note 373.
376
Joanna Paraszczuk, Georgian Ex-President Says ‘Hundreds of Georgians Fighting With IS in Syria’ (January
13, 2015).
377
Hardin Lang & Muath Al Wari, The Flow of Foreign Fighters to the Islamic State: Assessing the Challenge
and the Response, at 8 CENTER FOR AMERICAN PROGRESS (2016).
378
Id.
379
Id.
380
Id. at 10.
372

62

 147. Australian authorities believe Australian-national Neil Prakash “may have been linked to
[ISIL’s] drone programme”, although he “denied playing a broader role within the
group.”381 After entering Syria in 2013, Prakash was “the public face of a number of
Islamic State’s propaganda videos” and played a prominent role in Islamic State
operations.382
c.

There is a reasonable basis to believe that foreign fighters in ISIS
leadership roles are responsible for gender-based crimes in Iraq, on
the basis of command or superior responsibility under Rome Statute
Article 28

148. There is compelling evidence that foreign fighters in ISIS are liable for gender-based
crimes on the basis of command or superior responsibility under Article 28. Article 28
establishes criminal responsibility for military commanders or persons effectively acting
as military commanders,383 as well as non-military superiors.384 Article 28 requires: (i) the
existence of effective control; (ii) the subjective element or mens rea; (iii) the failure to
take necessary and reasonable measures; and (iv) causality.385
149. First, ISIS foreign fighters in command positions exhibit effective control. Under Article
28, a commander or superior must have effective “command and control”386 or “authority
and control”387 over forces or subordinates who committed crimes within the jurisdiction
of the Court.388 Effective control refers to the “material ability ‘to prevent or repress the

381

Martin Chulov, Jamie Grierson, & Jon Swaine, ISIS Faces Exodus of Foreign Fighters As Its ‘Caliphate’
Crumbles, THE GUARDIAN (April 26, 2017).
382
Id.
383
Rome Statute, Article 28(a) (referring to “[a] military commander or person effectively acting as a military
commander”). See also Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a)
and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 410 (June
15, 2009) (“[T]his category of military-like commanders may generally encompass superiors who have
authority and control over regular government forces such as armed police units or irregular forces (nongovernment forces) such as rebel groups, paramilitary units including, inter alia, armed resistance movements
and militias that follow a structure of military hierarchy or a chain of command.”).
384
Rome Statute, Article 28(b).
385
Id. Articles 28(a), 28(b).
386
Id. Article 28(a).
387
Id. Articles 28(a), 28(b).
388
See Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶¶ 412-413 (June 15, 2009)
(“[A]lthough the degree of ‘control’ required under both expressions is the same . . . the term ‘effective
authority’ may refer to the modality, manner or nature, according to which, a military or military-like
commander exercise ‘control’ over his forces or subordinates.”).

63

 commission of the crimes or to submit the matter to the competent authorities for
investigation and prosecution.’”389
150. As described above, ISIS operates a militarized bureaucracy in which foreign fighters
occupy key leadership positions,390 including at least one in one of the highest ISIS
governing bodies, the Shura Council.391 The command structure of ISIS requires absolute
compliance with orders and official policies and establishes strict disciplinary
mechanisms to ensure compliance. For example, ISIS operates a “security apparatus . . .
to identify, torture, and eliminate any suspected dissidents, spies, and defectors” and
“takes [measures] to control the behavior of combatants in warfare [including] the
regulation and censorship of their communications.”392 ISIS has demonstrated the ability
to “use[] its legal system to discipline its own members—both civilian officials as well as
combatants.”393 Thus, there is a reasonable basis to believe that foreign fighters in
leadership roles had the “material ability” to prevent, repress, or discipline and thereby
exercised effective control over subordinates who committed gender-based crimes.
151. Second, ISIS foreign fighters have the requisite mens rea. In order to incur criminal
responsibility under Article 28(a)(i) of the Rome Statute a “military commander or person
effectively acting as a military commander” must have “either kn[own], or owing to the
circumstances at that time, should have known that forces were committing or about to
commit such crimes.” A higher standard applies for all other kinds of superior and
subordinate relationships not involving a military commander or effective military
commander. This higher standard requires that the superior “either knew, or consciously
disregarded information which clearly indicated, that the subordinates were committing
or about to commit such crimes.”

389

Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 415 (June 15, 2009); cf.
Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Judgement, ¶ 50 (July 3, 2002); Prosecutor v. Orić, Case
No. IT-03-68-A, Judgement, ¶ 311 (Int’l Crim. Trib. for the Former Yugoslavia, July 3, 2008) (“[W]hat matters
[for effective control] is whether the superior has the material ability to prevent or punish the criminally
responsible subordinate.”).
390
See also, Glenn, supra, note 53, (“Foreign fighters occupy many of the top administrative posts in the
bureaucracy.”).
391
See, e.g., U.N. Security Council: Press Release Sanction List, supra, note 373 (identifying Georgian senior
military commander as a member of the Shura Council).
392
Mara Revkin, The Legal Foundations of the Islamic State 22, 36 (The Brookings Inst., Analysis Paper No.
23, 2016).
393
Id. at 14, 17, 26, 30.

64

 152. Gender-based crimes are officially sanctioned by ISIS’s leadership. For example, ISIS
has an official policy promoting the perpetration of sexual slavery. ISIS has also
published guidelines condoning gender-based crimes and “specifying the conditions
under which enemy combatants may be targeted, tortured, mutilated, or killed, as well as
rules governing the ransom of non-Muslim hostages.”394
153. Even where no official fatwas, policies, orders, or public statements issued by ISIS
leadership have been discovered, the circumstances provide a reasonable basis to believe
that foreign fighters in leadership roles knew, should have known, or consciously
disregarded information that clearly indicated the commission of gender-based crimes.
As established in Section (IV)(B)(1)(a)(i) ISIS has committed gender-based crimes as
part of widespread, large-scale, and systematic attacks. It is inconceivable that
commanders and superiors within ISIS’s hierarchy are unaware of attacks of such scale
and notoriety that they have been the subject of reports by United Nations bodies and
prominent NGOs, and have been covered extensively by the international press.
154. Third, ISIS foreign fighters have failed to take all necessary and reasonable measures
within their power to prevent or repress the commission of gender-based crimes, or to
submit transgressions to the competent authorities for investigation and prosecution. In
this respect, there are three duties arising at different stages in the commission of crimes:
the duty to prevent, the duty to repress the commission of the crime during or after, and
the duty to submit the matter to competent authorities after the commission of the
crime.395
155. ISIS uses its legal system to discipline members that violate its policies, even
“execut[ing] its own judges when they deviate from its official position on legal
questions.”396 This demonstrates that ISIS leadership has the power to ensure compliance
with its orders and official policies. However, there is no evidence that it uses that power
to prevent or repress the commission of gender-based crimes, or to submit transgressions
to competent authorities for investigation and prosecution. Evidence instead indicates that
it uses that power to ensure that gender-based crimes are carried out.

394

Revkin, supra, note 392, at 22.
See Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the
Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶¶ 436, 442, 438-440 (June
15, 2009)
396
Revkin, supra, note 392, at 22, 26.
395

65

 156. Finally, the causality element is satisfied. Under Article 28(a) and 28(b) no direct causal
link is required and the Prosecutor need only demonstrate that the commander or
superior’s failure to exercise control properly increased the risk of the commission of the
crimes charged.397 As the Court has found, failure to punish past crimes committed by the
same group of subordinates can establish increased future risk.398
157. The gender-based crimes at issue are widespread, systematic, and officially sanctioned by
ISIS leadership. There is a reasonable basis to conclude that the failure of ISIS’s
leadership to exercise proper control or to punish past gender-based crimes, at the very
least, increased the risk that the commission of these crimes would be repeated.
d.

There is a reasonable basis to believe that foreign fighters in
leadership roles are individually liable for gender-based crimes under
Article 25(3)(a) of the Rome Statute

158. First, ISIS foreign fighters are liable as direct perpetrators. There is a reasonable basis to
believe that foreign fighters have committed gender-based crimes within the jurisdiction
of the Court as direct perpetrators, such as the crime of rape or sexual slavery,399 given
the widespread and systemic nature of these crimes.400
159. Second, ISIS foreign fighters in leadership roles are liable as co-perpetrators. Under
Article 25(3)(a), a person is liable if that person commits a crime “jointly with another” as
a co-perpetrator. Co-perpetration is based on the notion of joint control over the crime.401
Liability under the concept of co-perpetration requires a common plan between two or
397

Rome Statute, Article 28(a) (“A military commander or person effectively acting as a military commander
shall be criminally responsible for crimes . . . as a result of his or her failure to exercise control properly over
such forces.”); Rome Statute, Article 28(b) (“[A] superior shall be criminally responsible for crimes . . . as a
result of his or her failure to exercise control properly over such subordinates.”). See also Prosecutor v. Bemba,
Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of
the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 425 (June 15, 2009).
398
Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome
Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ¶ 434 (June 15, 2009).
399
See, e.g., Elements of Crimes, Article 8(2)(e)(vi)-2 (“The perpetrator exercised any or all of the powers
attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering
such a person or persons, or by imposing on them a similar deprivation of liberty.”).
400
See, e.g., Human Rights & Gender Justice Clinic, Seeking Accountability and Demanding Change, supra,
note 203, at 12, 29.
401
Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶ 342 (Jan. 29,
2007) (“The concept of co-perpetration based on joint control over the crime is rooted in the principle of
division of essential tasks for the purpose of committing a crime between two or more persons acting in a
concerted manner. Hence, although none of the participants has overall control over the offence because they
all depend on one another for its commission, they all share control because each of them could frustrate the
commission of the crime by not carrying out his or her task.”).

66

 more persons and the coordinated essential contribution by each co-perpetrator resulting
in the fulfilment of the material elements of the crime.402 The common plan need not be
explicit and the existence of a common plan can be inferred from circumstantial
evidence.403 Co-perpetrators must fulfill the subjective elements of intent and
knowledge.404
160. The evidence provides a reasonable basis to conclude that foreign fighters in leadership
roles have made essential contributions in the implementation of a common plan to carry
out gender-based crimes.405 Foreign fighters in leadership roles occupy influential
positions within ISIS’s hierarchy. Many of them have the ability to shape the policies of
ISIS and to direct the activities of their lower ranking co-perpetrators. ISIS’s established
reporting structures and lines of communication support the conclusion that foreign
fighters in leadership roles issued instructions relating to the implementation of the
common plan and were kept fully informed by their subordinates. Moreover, there is a
reasonable basis to believe that foreign fighters in leadership roles have provided
assistance in terms of planning military operations and have provided logistical support
by ensuring that weapons and supplies are available for subordinates.406
161. Third, ISIS foreign fighters in leadership roles are liable as indirect perpetrators. Under
Article 25(3)(a), a person is criminally responsible if that person commits a crime
“through another person,” as an indirect perpetrator. Indirect perpetration requires
“control over the will of those who carry out the objective elements of the offence.”407
Control over the direct actor can be exerted by means of an organization.408 Indirect
402

Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Judgment Pursuant to Article 74 of the Statute, ¶¶ 994,
1000-1001, 1003-1005 (Mar. 14, 2012) (“In the view of the Majority what is decisive is whether the coperpetrator performs an essential role in accordance with the common plan, and it is in this sense that his
contribution, as it relates to the exercise of the role and functions assigned to him, must be essential.”).
403
See Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶ 345
(Jan. 29, 2007).
404
Rome Statute, Article 30. See also Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717,
Decision on the Confirmation of Charges, ¶ 533 (Sept. 30, 2008) (“The Chamber finds that the co-perpetration
of a crime requires that both suspects: (a) are mutually aware that implementing their common plan will result in
the realisation of the objective elements of the crime; (b) undertake such activities with the specific intent to
bring about the objective elements of the crime, or are aware that the realisation of the objective elements will
be a consequence of their acts in the ordinary course of events.”).
405
See Prosecutor v. Lubanga, Case No. ICC-01/04-01/06 A 5, Judgment on the Appeal of Mr Thomas Lubanga
Dyilo Against His Conviction, ¶¶ 488-489 (Dec. 1, 2014).
406
Glenn, supra, note 53; Coffey, supra, note 374.
407
Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of
Charges, ¶ 488 (Sept. 30, 2008)
408
See Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of
Charges, ¶ 512(Sept. 30, 2008) (noting that the organization “must be based on hierarchical relations between

67

 perpetration also requires an essential contribution which “may consist of activating the
mechanisms which lead to the automatic compliance with their orders and, thus, the
commission of the crimes.”409 Indirect perpetration features the same subjective elements
of intent and knowledge as direct co-perpetration, with an additional requirement that
“the suspects are aware of the factual circumstances enabling them to exercise control
over the crime through another person.”410
162. As explained above, ISIS command structure allows its leadership to control their
subordinates through a strict hierarchy that features automatic compliance. Therefore,
there are reasonable grounds to believe that foreign fighters in leadership roles are liable
as indirect perpetrators because they possessed control over their subordinates and either
ordered the commission of gender-based crimes or “activated the mechanisms” that led to
their commission.
163. Fourth, ISIS foreign fighters are liable under the indirect co-perpetration principle.
Indirect co-perpetration applies when some or all of the co-perpetrators carry out their
respective essential contributions to the common plan through another person, and
combines the elements of co-perpetration and indirect perpetration.411 As set forth above,
there is a reasonable basis to believe that foreign fighters are liable as co-perpetrators and
indirect perpetrators. Due to their essential roles in coordinating the design and
implementation of a common plan to carry out gender-based crimes there is a reasonable
basis to conclude that they are also liable as indirect co-perpetrators. For example,
foreign fighters in leadership roles exercise control over the official slave market and the

superiors and subordinates. The organization must also be composed of sufficient subordinates to guarantee that
superiors’ orders will be carried out, if not by one subordinate, then by another. These criteria ensure that orders
given by the recognised leadership will generally be complied with by their subordinates.”).
409
Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of
Charges, ¶¶ 520-526 (Sept. 30, 2008).
410
Prosecutor v. Katanga and Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of
Charges, ¶¶ 533-534 (Sept. 30, 2008) (“Regarding this last [subjective] requirement, the suspects must be aware
of the character of their organisations, their authority within the organisation, and the factual circumstances
enabling near-automatic compliance with their orders.”).
411
See Prosecutor v. Bashir, Case No. ICC-02/05-01/09-3, Decision on the Prosecution's Application for a
Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ¶ 213 (Mar. 4, 2009); Prosecutor v. Katanga and
Ngudjolo, Case No. ICC-01/04-01/07-717, Decision on the Confirmation of Charges, ¶¶ 492-539 (Sept. 30,
2008).

68

 “war spoils” department through which military forces and administrative bodies engage
in sexual slavery.412
164. Finally, ISIS foreign fighters in leadership roles are individually liable for gender-based
crimes under Articles 25(3)(b), 25(3)(c), 25(3)(d) of the Rome Statute. Articles 25(3)(b),
25(3)(c), 25(3)(d) of the Rome Statute address various forms liability, as accessory or
secondary opposed to principal liability under Article 25(3)(a). For this reason and given
the notions of indirect and co-perpetrator responsibility under Article 25(3)(a), “decisions
of the International Criminal Court have preferred the doctrine of co-perpetration and
applied article 25(3)(a). The consequence has been to diminish the significance of the
complicity provisions . . . quite considerably.”413 For example, the same commentator
notes that “[A]rticle 25(3)(d) seems destined to play a rather minor role in the work of the
International Criminal Court, given the robust approach to [A]rticle 25(3)(a).”414 There
has accordingly been limited discussion of these provisions in ICC decisions and
arguments under these sections may be difficult in the abstract.

C.

A Case Against ISIS for its Gender -Based Cr imes in Ir aq Would Be Admissible

165. A case against ISIS fighters for the commission of gender-based crimes would be
admissible pursuant to Article 17 of the Rome Statute. Article 17 admissibility involves a
consideration of both complementarity and gravity. Under the principle of
complementarity, the Court will refrain from pursuing cases where States with
jurisdiction are already investigating or prosecuting the same case in good faith.415 Under
the principle of gravity, the Court will only investigate cases of sufficient seriousness,
based on an assessment of the scale, nature, and impact of the alleged crimes, as well as
the manner of commission of the crimes.416 In the present situation, both aspects of the
admissibility test are satisfied.

412

Revkin, supra, note 392, at 23; Jonathan Landay et al., Exclusive: Seized Documents Reveal Islamic State’s
Department of “War Spoils,” REUTERS, (December 28, 2015) (describing ISIS’s diwan or ministry for “war
spoils,” including slaves).
413
William A. Schabas, THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE 431
(2010).
414
Id. at 436.
415
See Rome Statute, art. 17(1)(a)-(c). See also COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT 384 (Otto Triffterer ed., 1999).
416
See Rome Statute, art. 17(1)(d).

69

 166. First, there are insufficient investigations and prosecutions of ISIS members for genderbased crimes in States that have jurisdiction. This alone is sufficient to justify the
intervention of the OTP under the complementarity principle. Moreover, even if States
with jurisdiction were to prosecute ISIS fighters for gender-based crimes, shortcomings in
the judicial systems in certain key states—namely Iraq, Tunisia, Jordan, and Libya—
render them unable [and unwilling] to genuinely investigate and prosecute. Second,
ISIS’s gender-based crimes are of sufficient gravity to render the cases admissible.
D.

The Cour t’s Pr osecution of ISIS’s Gender -Based Cr imes in Ir aq Accor ds with
the Complementar ity Pr inciple

167. Complementarity involves a two-part analysis. As an initial matter, the Chamber assesses
whether a state with jurisdiction is currently investigating or prosecuting the same case, or
has investigated or prosecuted the case in the past.417 If national proceedings have not
been initiated, the inquiry ends, as “inaction on the part of a State having jurisdiction
. . . renders a case admissible before the Court.”418
168. An OTP prosecution is justified under the complementarity principle when there are no
past or ongoing proceedings by a State with jurisdiction.419 To the extent past or ongoing
proceedings exist, only those regarding “the same suspects . . . for substantially the same
conduct” impact the complementarity analysis.420 In other words, it is only when “the

417

See Rome Statute, art. 17(1)(a)-(c). See also Prosecutor v. Katanga, Judgment on the Appeal Against the
Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04-01/07-1497,
Appeals Chamber, dated 25 September 2009 ¶ 78; Informal Expert Paper: The Principle of Complementarity in
Practice, ICC-OTP (2003), ¶7.
418
Prosecutor v. Simone Gbagbo, Decision on Côte d’Ivoire’s Challenge to the Admissibility of the Case
against Simone Gbagbo, ICC-02/11-01/12, Pre-Trial Chamber I, dated 11 December 2014 ¶ 27 (quoting
Prosecutor v. Katanga, Judgment on the Appeal Against the Oral Decision of Trial Chamber II of 12 June 2009
on the Admissibility of the Case, ICC-01/04-01/07-1497, Appeals Chamber, dated 25 September 2009, ¶ 2)
(internal quotation marks omitted).
419
See Rome Statute, art. 17(1). See also Prosecutor v. Muthaura, Kenyatta, and Ali, Judgment on the Appeal
of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the
Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b)
of the Statute, ICC-01/09-02/11-274, Appeals Chamber, dated 30 August 2011 ¶ 43 (“If the suspect or conduct
have not been investigated by the national jurisdiction, there is no legal basis for the Court to find the case
inadmissible.”).
420
Prosecutor v. Muthaura, Kenyatta, and Ali, Judgment on the Appeal of the Republic of Kenya against the
decision of Pre-Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the Government of
Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute, ICC-01/09-02/11274, Appeals Chamber, dated 30 August 2011 ¶ 39; Prosecutor v. Ruto, Kogsey, and Sang, Judgment on the
Appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled
“Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant
to Article 19(2)(b) of the Statute, ICC-01/09-01/11-307, Appeals Chamber, dated 30 August 2011 ¶ 40.

70

 case that the State is investigating sufficiently mirrors the one that the Prosecutor is
investigating” that the Prosecutor’s case may become inadmissible.421
169. If the Court determines that national proceedings in the same case exist, it will then
consider the second prong of the complementarity analysis.422 Under that prong, the Court
must assess whether the states that are purportedly investigating or prosecuting the same
case are unwilling or unable to do so “genuinely.”423
1.

States that may have jurisdiction over the perpetrators have failed to act

170. The exercise of the ICC’s complementary jurisdiction is warranted in the present mater.
Although investigations and prosecutions of ISIS members are ongoing in certain national
jurisdictions, none of these investigations or prosecutions concern broader gender-based
crimes. In these cases, the focus will likely be on terrorism charges instead.424
171. Other States with jurisdiction over ISIS fighters—including Tunisia, Jordan, Libya, the
United Kingdom, France, Germany, Belgium, the Netherlands, and Australia—have
similarly failed to investigate or prosecute ISIS members over which they have
jurisdiction for gender-based crimes. While certain States Parties to the Rome Statute
have subjected ISIS foreign fighters to arrest warrants,425 arrests,426 and trials in absentia

421

Prosecutor v. Saif Al-Islam Gaddafi, Judgment on the appeal of Libya against the decision of Pre-Trial
Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi,"
ICC-01/11-01/11-547-Red, ¶ 2.
422
Prosecutor v. Katanga, Judgment on the Appeal Against the Oral Decision of Trial Chamber II of 12 June
2009 on the Admissibility of the Case, ICC-01/04-01/07-1497, Appeals Chamber, dated 25 September 2009, ¶
78 (“It is only when [there are ongoing investigations or prosecutions, or there have been investigations in the
past, and the State having jurisdiction has decided not to prosecute the person concerned] that one has to …
examine the question of unwillingness and inability. To do otherwise would be to put the cart before the horse.
It follows that in case of inaction, the question of unwillingness or inability does not arise; inaction on the part
of a State having jurisdiction (that is, the fact that a State is not investigating or prosecuting, or has not done so)
renders a case admissible before the Court.”).
423
See Rome Statute, arts. 17(2) (Unwilling) and 17(3) (Unable). See Prosecutor v. Katanga, Judgment on the
Appeal Against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC01/04-01/07-1497, Appeals Chamber, 25 September 2009. It is important to note that either of the two
scenarios of unwillingness or inability is sufficient for ICC admissibility. Decision on the admissibility of the
case against Abdullah Al-Senussi, Gaddafi and Al-Senussi, ICC-01/11-01/11-466-Red, October 11, 2013, ¶ 169.
424
For example, Britons extradited to the United Kingdom may face charges under the national Terrorism Act.
Chulov et al., supra, note 381
425
See, e.g., U.N. Security Council ISIL (Da’esh) and Al-Qaida Sanctions List,
https://scsanctions.un.org/fop/fop?xml=htdocs/resources/xml/en/consolidated.xml&xslt=htdocs/resources/xsl/en
/al-qaida.xsl (French arrest warrant was issued on June 12, 2015 for the French national, Emilie Konig, for her
participation in a terrorist criminal association); “Benghalem, Salim,” INTERPOL,
https://www.interpol.int/en/notice/search/un/5930707 (French national, Salim Benghalem, is subject to an
European Arrest Warrant for his activities on behalf of ISIS).

71

 for terrorism-related activities,427 gender-based crimes have not been the subject of any of
these proceedings.
172. No national proceeding to date concerns the gender-based crimes that would be the
subject of an OTP prosecution. 428 As described in Sections III(C) and III(D), ongoing
ISIS conduct giving rise to liability under the Rome Statute includes rape, murder and
torture motivated by gender discrimination, and sexual slavery. This conduct is unique in
its type, intent, and victims, and must be redressed as such. As no State with jurisdiction
is redressing these crimes, an OTP investigation is justified under the complementarity
standard.
173. It is not the duty of the OTP to disprove the existence of ongoing investigations or
prosecutions of ISIS members for gender-based crimes.429 Once the OTP initiates a
prosecution, the burden rests on the State with jurisdiction over the crimes to demonstrate
that they have conducted or are conducting investigations or prosecutions for
substantially the same conduct.430 In order to make this showing a State must satisfy a
high evidentiary threshold.431

426

See, e.g., How will Tunisia deal with thousands of returning jihadis? AL-MONITOR (January 17, 2017) (At
least 92 foreign fighters were placed under house arrest upon their return to Tunisia; others have been
imprisoned and are awaiting trial).
427
See, e.g., Paris Attacks: Was Salim Benghalem the Real Ringleader? BBC (January 26, 2016) (Salim
Benghalem was sentenced in absentia by a Paris court to 15 years in prison in January 2016 for promoting
terrorism).
428
A thorough review of publically available materials in English, Arabic, and French, including media sources,
public databases, and organizational reports, has yielded no reference to ongoing gender-based prosecutions.
429
Prosecutor v. Simone Gbagbo, Decision on Côte d’Ivoire’s Challenge to the Admissibility of the Case
against Simone Gbagbo, ICC-02/11-01/12, Pre-Trial Chamber I, dated 11 December 2014, ¶ 28 (quoting
Appeals Chamber, “Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber
II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the
Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute,’” 30 August 2011, ICC-01/09/02/11-274,
¶¶ 2, 61).
430
Prosecutor v. Mutahura, Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial
Chamber II of 30 May 2011, ICC-01/09-02/11 OA, ¶ 39.
431
See Prosecutor v. Saif Al-Islam Gaddafi, Judgment on the appeal of Libya against the decision of Pre-Trial
Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi,"
ICC-01/11-01/11-547-Red, ¶ 2. In Gaddafi, the Court found that Libya had insufficiently demonstrated that its
ongoing prosecution rendered the ICC case inadmissible. Id. ¶ 34 (“[I]f it has only been established that
‘discrete aspects’ of the case before the Court are being investigated domestically, it will most likely not be
possible for a Chamber to conclude that the same case is under investigation”). Whereas the ICC investigation
focused on allegations of murder and persecution during the first two weeks of the Libyan civil war in 2011, the
Libyan investigation focused on allegations of financial crimes and corruption. Id. ¶ 52. Even where Libya
claimed to expand its investigations to cover “all crimes committed by Mr. Gaddafi during the revolution,” id.,
the Court determined that “the evidence . . . did not sufficiently demonstrate that Libya was investigating the
same case,” id. ¶ 75.

72

 2.

States that may have jurisdiction over the perpetrators are unable to
genuinely conduct the proceedings

174. Even if a State with jurisdiction is able to demonstrate that it is conducting domestic
proceedings related to the same case, the OTP may still intervene under the
complementarity principle if the State is “unable” to genuinely conduct the proceedings.
According to Article 17(3) of the Rome Statute, the inability assessment requires the
Court to “consider whether, due to a total or substantial collapse or unavailability of its
national judicial system, the State is unable to obtain the accused or the necessary
evidence and testimony or otherwise unable to carry out its proceedings.”432 The Court
must therefore make two determinations: first, whether the national judicial system has
substantially collapsed or is otherwise unavailable; and second, whether due to such
collapse or unavailability, the state is unable to obtain the accused, unable to obtain the
necessary evidence and testimony, or otherwise unable to proceed.
175. The two prongs of the inability assessment permit broad and flexible interpretations.
According to the 2003 Informal Expert Paper on the Principle of Complementarity in
Practice,433 “the term ‘unavailability’ [in the first prong of the analysis] should be given a
broad interpretation, so as to cover the various ‘inability’ scenarios in the latter part of
Article 17(3) and to cover typical cases of inability.”434 Additionally, the subsequent
“otherwise unable” wording in the second prong of the analysis creates flexibility for the
Court to consider a variety of situations that may hamper the proper functioning of a
State’s judicial system, regardless of the State’s ability to obtain the accused or the
necessary evidence and testimony.435
176. The following factors, inter alia, may inform the Court’s assessment of “collapse or
unavailability” under Article 17(3):
•

lack of necessary personnel, judges, investigators, [or] prosecutor[s];

•

lack of judicial infrastructure;

432

Rome Statute, art. 17(3).
The Informal Expert Paper was drafted at the request of and in extensive consultation with the OTP. See
Informal Expert Paper, supra, note 417, at 2.
434
Informal Expert Paper, supra, note 417, n.15.
435
J. Holmes, Complementarity: National Courts versus the International Criminal Court, in THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 667-678 (A. Cassese, P. Gaeta &
J.R.W.D. Jones eds., 2002).
433

73

 •

lack of substantive or procedural penal legislation rendering [the] system
“unavailable”; [and]

•

lack of access rendering [the] system “unavailable.”436

177. More broadly, the assessment of “inability” (and “unwillingness”) may involve
consideration of “background context issues,” such as:
•

[j]urisdictional territorial divisions [. . .];

•

[i]ntegrity/corruptability of staff and institutions; [and]

•

[r]esources invested and [the] ability of State institutions to cope with [the]
scale of crime.437

178. These systemic considerations are probative not only of states’ ability to obtain the
accused and necessary evidence, but their capacity and willingness to prosecute crimes
more generally.
179. Application of these factors demonstrates that several of the States with jurisdiction are
unable to genuinely investigate or prosecute ISIS foreign fighters for gender-based
crimes. In particular, the national judicial systems of Iraq, Tunisia, Jordan, and Libya
have substantially collapsed or are otherwise unavailable. Due to such collapse or
unavailability, the States are unable to obtain the accused, unable to obtain the necessary
evidence and testimony, or otherwise unable to proceed.
a.

Inability of Iraq

180. The lack of judicial personnel and infrastructure render Iraq’s judicial system unavailable.
As a general matter, Iraq’s judicial infrastructure is “weak”438 and “plagued with
arbitrariness and opacity.”439 As OHCHR and UNAMI have reported, there is an
insufficient supply of prosecutors in Iraq, resulting in lengthy delays.440 This may be due,
in part, to the fact that lawyers, judges, and other court officers are under constant threat
436

The Informal Expert Paper on the Principle of Complementarity in Practice helpfully enumerated a list of
potentially relevant indicators. See Informal Expert Paper, supra, note 417, at 2 & Annex 4, 28.
437
Informal Expert Paper, supra, note 417, at Annex 4, Sec. 1.
438
OHCHR & UNAMI, Report on Human Rights in Iraq: July-December 2012, at 17 (2012).
439
HRW, Iraq: A Broken Justice System, (January 31, 2013).
440
OHCHR & UNAMI: Report July-December 2012, supra, note 438.

74

 and subject to fatal attacks by armed groups.441 Many lawyers fear taking on politically
sensitive cases.442 Judicial personnel are also vulnerable to corruption.443 Lastly, with
respect to gender-based crimes in particular, judicial personnel lack the training and
resources needed to engage in gender-sensitive investigations, including the identification
of trafficking situations, handling of complaints, and management of survivors and
witnesses.444
181. The lack of penal legislation concerning gender-based violence further renders Iraq’s
judicial system unavailable. For instance, the Iraqi Penal Code fails to criminalize
domestic violence445 and female genital mutilation,446 and effectively condones honor
killings.447
182. Even if more pertinent penal legislation were adopted, the deep-seated discrimination of
Iraq’s judicial system against women and LGBT persons renders it unavailable to the
victims of the alleged crimes. Women and LGBT persons in Iraq generally lack equal
access to justice.448 The Iraqi judicial system often punishes women for being victims of
gender-based crimes. Victims of sex trafficking, for example, are punished for activities
carried out as a result of having been subjected to trafficking.449 Iraqi law enforcement
441

Amnesty International, Iraq: Amnesty International submission for the UN Universal Periodic Review: 20th
session of the UPR Working Group, at 4 (2014).
442
HRW, No One Is Safe: Abuses of Women in Iraq’s Criminal Justice System, at 4 (2014).
443
Amnesty International, Iraq, supra, note 441, at 4; In many cases, judges and investigating officers have
accepted bribes. HRW, No One Is Safe, supra, note 442, at 4.
444
Minority Rights Group: No Place to Turn, supra, note 9, at 33, (“Iraq’s male-dominated police and security
forces lack the gender-sensitivity training needed to deal effectively with allegations of trafficking or to
recognize its signs. The judicial system is also unlikely to be sympathetic to victims of trafficking.”);
445
A draft law on domestic violence has been awaiting approval since January 2012. Comm. on the Elimination
of Discrimination against Women, CEDAW: Concluding Observations Iraq, supra, note 7, ¶ 9.
446
CCPR, State Party Reply to the List of Issues: Iraq, ¶ 24. Doc: CCPR/C/IRQ/Q/5/Add.1 (27 Aug. 2015). The
Kurdistan Regional Parliament recently passed a bill to prohibit “female circumcision,” but the Iraqi
government has not yet followed suit.
447
Human Rights and Gender Justice (HRGJ) Clinic, supra, note 181, at 9; Human Rights & Gender Justice
Clinic, Seeking Accountability and Demanding Change, supra, note 203, at 17-18; (“Several Iraqi Penal Code
provisions, including Article 128, Article 130, and Article 409, allow for mitigated sentences for violent acts,
including homicide, committed for so-called ‘honourable motives.’ These legal mechanisms allow ‘honor’
killings to continue with impunity. . . . [P]olice are unwilling to investigate cases due to their own social
acceptance of ‘honor’ killings.”).
448
Human Rights and Gender Justice (HRGJ) Clinic, supra, note 181, at 8. In this context, it is telling that Iraq
failed to respond to queries from the CEDAW Committee asking for information on how the government will
ensure women’s effective access to justice.
449
Human Rights & Gender Justice Clinic, Seeking Accountability and Demanding Change, supra, note 203, at
16; (“[T]he Government of Iraq does not effectively investigate or punish Government officials who face
allegations of complicity in trafficking-related offenses. Moreover, prosecutors and judges are still too often
uneducated about the law and courts continue to prosecute trafficking victims under laws criminalizing
prostitution.”). The CEDAW Committee has also noted with concern the “harsh” and excessive sentences
imposed on women for involvement in prostitution. CEDAW: Concluding Observations Iraq, supra, note 7, ¶

75

 also routinely fails to investigate and punish crimes against LGBT persons. Some
security personnel even participate in such abuse.450 These systemic shortcomings all
contribute to the unavailability of Iraq’s judicial system.
183. The same conditions that render Iraq’s judicial system unavailable also render Iraq unable
to genuinely investigate and prosecute ISIS for gender-based crimes. In particular, the
lack of judicial infrastructure, personnel, and access to justice all contribute to the State’s
inability to obtain the accused or the necessary evidence and testimony to investigate and
prosecute.
b.

Inability of Tunisia

184. Tunisia’s judicial system is similarly unavailable due to the lack of judicial infrastructure.
As the UN Special Rapporteur on the independence of judges and lawyers observed on a
recent mission to Tunisia, judgments are often hand-written, work flows lag, “there is no
methodology for preparing cases for hearings,” and “nobody administers court work.” 451
The Rapporteur noted that “in one court, there had been no ink for a printer for an entire
year because courts were not involved in the management of their budget and everything
had to go through the Ministry of Justice.” 452 Indeed, there is “a complete lack of
efficiency in the administration of justice.” 453 All of these shortcomings contribute to the
effective unavailability of Tunisia’s judicial system.
185. The lack of substantive or procedural penal legislation also renders Tunisia’s judicial
system unavailable. The Penal Code fails to criminalize marital rape and allows men who
rape women aged 15 to 20, or who abducted girls under the age of 18, to escape

32. Those detained face torture and ill-treatment. GENEVA INT’L CTR. FOR JUSTICE, IRAQ: TORTURE & ILLTREATMENT 17 (2015) (“In the case of women who were detained, rape and other forms of sexual violence were
often used to torture and humiliate in an attempt to garner confessions. Reports indicate that men were also
raped with sticks and bottles in an attempt to emasculate.”)
450
Human Rights and Gender Justice (HRGJ) Clinic, supra, note 181, at 6.
451
UN Human Rights Council, Report of the Special Rapporteur on the independence of judges and lawyers on
her mission to Tunisia, 26 May 2015, A/HRC/29/26/Add.3, para.54.
452
Id.
453
Id.

76

 prosecution if they marry their victims.454 The Penal Code also punishes same-sex sexual
relations by up to three years in prison.455
186. Notwithstanding the absence of penal legislation, the deep-seated discrimination of
Tunisia’s judicial system renders it unavailable to the victims of gender-based crimes.456
The Tunisian government often chooses not to investigate gender-based crimes.457 Many
victims are punished and blamed when they file complaints.458 Men that engage in samesex sexual relations, for example, may be subjected to forced anal examinations by the
authorities, in violation of the prohibition of torture.459 These features of the justice
system make it virtually impossible for women and LGBT persons to lodge complaints
for gender-based crimes. In fact, they often pave the way for blackmail and further abuses
by the police.460 For these reasons, the Tunisian judicial system is unavailable to victims
of ISIS’s gender-based crimes in Iraq.
187. For the same reasons that Tunisia’s judicial system is unavailable, Tunisia is unable to
carry out investigations and prosecutions. While Tunisia has been able to obtain custody
of some foreign fighters,461 it remains unable to obtain the necessary evidence and
testimony for gender-based crimes and to otherwise carry out proceedings pursuant to
Article 17(3) of the Rome Statute.
c.

Inability of Jordan

188. As in Iraq and Tunisia, the lack of judicial personnel and infrastructure renders Jordan’s
judicial system unavailable. Jordan has “a slow judiciary that lacks administrative and
financial independence” and is riddled with corruption.462 In response to the question
“[t]o what extent does the Judiciary have adequate levels of financial resources, helpers,
and basic structure necessary to perform effectively,” Transparency International gave
454

The Penal Code also criminalizes rape based on the use of violence but not on the absence of consent. Id.
HRW, World Report 2017: Tunisia, available at https://www.hrw.org/world-report/2017/countrychapters/Tunisia; Amnesty International, Assaulted and Accused: Sexual and Gender-Based Violence in Tunisia,
at 34 (November 2015).
456
Amnesty International, Assaulted and Accused, supra, note 455, at 10.
457
Id. at 60.
458
Some police directly participate in violence, exploitation, and sexual and other abuse against LGBT
individuals. Id. at 41.
459
Amnesty International, Annual Country Report: Tunisia, available at
https://www.amnesty.org/en/countries/middle-east-and-north-africa/tunisia/report-tunisia.
460
Amnesty International, Assaulted and Accused, supra, note 455, at 42.
461
See, e.g., AL-MONITOR: Tunisia, supra, note 426.
462
USAID, Jordan Country Development Cooperation Strategy: 2013-2017, at 3 (March 2015); Democracy
International, Jordan Rule of Law and Anti-Corruption Assessment, at 12, (June 2013).
455

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 Jordan a score of 50 out of 100.463 Democracy International found that “[t]he key actors
in the justice system—regulatory office personnel, police, investigative staff, prosecutors
and judges—do not have the skill sets necessary to deal with complex, contemporary
legal issues and cases.”464 Prosecuting gender-based crimes undoubtedly invokes such
issues and cases.
189. The lack of pertinent penal legislation renders Jordan’s judicial system unavailable to the
victims of gender-based violence in particular. Jordan lacks substantive and procedural
penal legislation concerning gender-based violence. Many of Jordan’s laws are
discriminatory and “inadequately protect[] against so-called honour crimes and other
forms of gender-based violence.”465 For instance, Article 340 of the Jordanian Penal Code
allows mitigated sentences for men who attack their wives or female relatives for
committing adultery or being in an “unlawful bed.”466
190. Moreover, in practice, the discriminatory nature of Jordan’s judicial system renders it
unavailable to the victims of gender-based crimes. Women face “social and economic
barriers to using the formal justice system.”467 Even when female victims do file
complaints, they are often mistreated by judicial personnel and their claims may be
“questioned inappropriately or are not recorded or investigated.” 468 Women often face
unsympathetic judges, particularly in cases of domestic violence.469
191. Due to the same conditions rendering its judicial system unavailable, Jordan is unable to
obtain the accused and evidence and otherwise unable to conduct its proceedings.
Additionally, Jordan’s lack of access to ISIS-controlled territory470 may exacerbate its
inability to obtain perpetrators, evidence, and testimony in particular.

463

Rasheed, Transparency International Jordan, The National Integrity System (NIS) Jordan Report, (2016), at

10.
464

Democracy International, supra, note 462, at 46.
Amnesty International, Annual Country Report: Jordan (2016), available at
https://www.amnesty.org/en/countries/middle-east-and-north-africa/jordan/report-jordan/.
466
HRW, How to End ‘Honor’ Killings in Jordan, (April 3, 2017). The sentence for honor killings can be as
little as one year. Id.
467
Democracy International, supra, note 462, at 14.
468
Id.
469
Id. at 11-12.
470
While Jordan has contributed to the military coalition against ISIS, its contribution has been largely limited
to aerial bombardment. See Kathleen J. McInnis, Coalition Contributions to Countering the Islamic State, at 9,
UNITED STATES CONGRESSIONAL RESEARCH SERVICE, (August 24, 2016); see also Ali Younes, Jordanians
‘won’t support ground intervention in Syria, AL JAZEERA, (May 9, 2017).
465

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 d.

Inability of Libya

192. Lack of territorial control and judicial infrastructure render Libya’s judicial system
unavailable and are indicative of substantial collapse. To date, thousands of detainees
have been held in “unofficial prisons run by armed groups”471 and “paramilitaries and
militias” impose “‘self-justice’ according to their own standards and beliefs.”472 Three
rival governments are competing to assert territorial authority473 and militias abduct
politicians, journalists, and civilians for political gains.474 The Supreme Court has failed
to issue judgments due to political divisions475 and the “domestic criminal justice system
remain[s] dysfunctional, offering no prospects for accountability.”476 As a result of these
shortcomings, most gender-based crimes go unreported and unchecked. For example,
when asked why she failed to file a police complaint, one female victim responded,
“Which police? The police can’t do anything for me. The militias are too strong.”477
193. The lack of substantive penal legislation also contributes to the unavailability of Libya’s
justice system in the present case. According to Human Rights Watch, “Libyan law
inadequately prohibits domestic violence and its personal status laws continue to
discriminate against women, particularly with respect to marriage, divorce, and
inheritance.”478 The Libyan Penal Code also permits mitigated sentences for honor
killings.479
194. Due to the substantial collapse and / or unavailability of its judicial system, Libya is
unable to conduct proceedings in the instant case. In this context, it is important to
recognize this Court’s previous findings on the situation of Libya. While in al-Senussi,
the Appeals Chamber did not find Libya unable to prosecute the accused,480 its ruling
471

Amnesty International, Annual Country Report: Libyia, (2016), available at
https://www.amnesty.org/en/countries/middle-east-and-north-africa/libya/report-libya/.
472
Hanan Salah, The Law is Failing the Women of Libya, LOS ANGELES TIMES, (June 18, 2014).
473
HRW, World Report 2017: Libya, https://www.hrw.org/world-report/2017/country-chapters/libya (“The
United Nations-backed, internationally recognized Government of National Accord (GNA) struggled in 2016 to
assert itself in the capital Tripoli, as two authorities—one also based in Tripoli and another in eastern Libya—
continued to compete for legitimacy and control over resources and infrastructure.”).
474
Id.
475
Id.
476
Id. Indeed, the Libyan courts are “unable to process thousands of untried detainees’ cases, some dating from
2011.” HRW: World Report Libya, supra, note 473.
477
Salah, supra, note 472.
478
HRW: World Report Libya, supra, note 473.
479
Id.
480
Decision on the admissibility of the case against Abdullah Al-Senussi, Gaddafi and Al-Senussi, ICC-01/1101/11-466-Red, October 11, 2013, ¶ 303.

79

 rested on the “concrete circumstances of the present case,”481 including the fact that
proceedings against al-Senussi had advanced significantly.482 In the instant case, no such
national prosecutions have begun. Moreover, the security situation has materially
worsened since 2013, with rival governments competing for power. In November 2016,
the Prosecutor pledged a “commitment to make Libya a priority situation in 2017.”483
Indeed, the OTP has itself confirmed its view that Libya is in a state of lawlessness.484
Thus, an investigation of gender-based crimes committed by Libyan nationals affiliated
with ISIS would be admissible.

E.

ISIS’s Gender -Based Cr imes Ar e of Sufficient Gr avity To Render the Cases
Admissible

195. Even if states with jurisdiction are inactive, unable, or unwilling, the Court may still find
a case inadmissible if it “is not of sufficient gravity to justify further action.”485 In the
instant case, however, there is sufficient gravity to warrant the Court’s investigation. An
analysis of the relevant factors—scale, nature, impact, and manner of commission of the
alleged crimes486—demonstrates sufficient gravity for the case to be admissible.
196. First, ISIS’s leadership is perpetrating gender-based crimes on a massive scale.487 Foreign
fighters in ISIS’s leadership have killed, tortured, raped, assaulted, and abducted
significant numbers of women and girls.488 There has been at least one mass execution of
over 60 Yazidi women in Iraq.489 The geographical spread of the crimes committed is

481

Id. ¶ 301.
Id. ¶ 303 (discussing “the quantity and nature of the evidence gathered as part of the investigation in relation
to Mr Al-Senussi's case, the ultimate transfer of the case to the Accusation Chamber and the recent
commencement of the accusation phase”).
483
International Criminal Court Aims to Make Libya a Priority for Next Year, Says Prosecutor, UN NEWS
CENTRE, (November 9, 2016).
484
Id.
485
Id., art. 17(1)(d).
486
See OTP, Prelim Examinations, supra, note 275, ¶ 9. See also Situation in the Republic of Kenya, “Decision
Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the
Republic of Kenya,” Mar. 31, 2010, ICC-01/09-19-Corr, ¶ 62.
487
According to the OTP, the scale of alleged crimes is assessed in light of, inter alia, the number of victims,
extent of damage, and geographical or temporal spread of the crimes committed. OTP, Prelim Examinations,
supra, note 275, ¶ 62.
488
See, e.g., U.N. HRC, They Came to Destroy, A/HRC/32/CRP.2 ¶ 140 (referring to sexual violence on a
massive scale).
489
Id.
482

80

 discernible from recent evidence of mass graves across areas under ISIS control.490 In
fact, the OTP has already characterized ISIS’s atrocities as “widespread.”491
197. Second, the nature of the alleged crimes demonstrates sufficient gravity. 492 As the OTP
previously recognized, ISIS is committing gender-based crimes of “unspeakable cruelty”
including mass executions, sexual slavery, rape, torture, mutilation, and other forms of
sexual and gender-based violence.493 The OTP’s nature assessment involves consideration
of “persecution, or the imposition of conditions of life on a group calculated to bring
about its destruction.”494 In the present case, ISIS has issued edicts, manifestos,
maintaining its policy and practice of imposing oppressive gender regulations concerning
social behavior, including sexual practices. As evidenced in Section III(C)(2)(a), (b), ISIS
systematically persecutes people based on gender and gender expression. These policies
are laid out in the 2015 42-page ISIS publication, Women of the Islamic State: Manifesto
and Case study495 and the 2014 Pamphlet on Female Slaves.496 For instance, ISIS grounds
its persecution of perceived homosexuals in the legal framework of the “caliphate,”
referring to all gay people as the tribe of Lot, who, by ISIS’s interpretation of the Quran,
caused the destruction of the biblical city of Sodom.497 The attempt to bring about their
destruction is clear—as one gay Iraqi man explained, “[t]hey are trying to track down
every gay man.”498
198. Third, ISIS’s crimes have caused an extreme, long-lasting impact. The impact of crimes,
according to the OTP, may be assessed “in light of, inter alia, the sufferings endured by
the victims and their increased vulnerability; the terror subsequently instilled, or the
social, economic and environmental damage inflicted on the affected communities.”499 In
the present case, the survivors of ISIS’s gender-based crimes have articulated long-lasting
physical and psychological impact. Interviewees have “described feelings of abject
490

U.N. HRC, supra, note 488, ¶ 48. Yazda, supra, note 335.
OTP Statement re ISIS, dated 8 April 2015, 1.
492
According to the OTP, “The nature of the crimes refers to the specific elements of each offence such as
killings, rapes and other crimes involving sexual or gender violence and crimes committed against children,
persecution, or the imposition of conditions of life on a group calculated to bring about its destruction.” OTP
Policy Paper on Prelim Examinations ¶ 63.
493
OTP Statement re ISIS, dated April 8, 2015 at 1.
494
OTP, Prelim Examinations, supra, note 275, ¶ 63
495
Women of the Islamic State, supra, note 83; Mah-Rukh Ali, supra, note 96.
496
MEMRI, supra, note 103; Jonathan Landay, Warren Strobel, Phil Stewart, Exclusive – Islamic State ruling
aims to settle who can have sex with female slaves, REUTERS (Dec. 29, 2015).
497
OutRight Action International, supra, note 174.
498
BBC, supra, note 176.
499
OTP, Prelim Examinations, supra, note 275, ¶ 65.
491

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 terror”500 and female survivors of sexual slavery “have been shattered, with many
experiencing suicidal thoughts, and intense feelings of rage interspersed with periods of
deep depression and listlessness.”501 Beyond this impact at the individual level, the
alleged crimes have inflicted severe damage to victims’ families and communities. ISIS
has perpetrated widespread infrastructural damage502 and many homes belonging to
Yazidi women in particular have been looted, destroyed, or severely damaged by ISIS
fighters.503
199. Finally, the manner of commission of the alleged gender-based crimes is particularly
heinous, targeting the most vulnerable populations.504 It is clear in the instant case that
women and gender non-conforming persons suffer systematic violations sanctioned by
ISIS’s ideological framework and official policies.505 The attacks have been planned,
directed and organized by ISIS leadership and executed by ISIS fighters. In the
determination of the manner of commission of crimes, the OTP may also consider
“elements of particular cruelty, including the vulnerability of the victims, any motives
involving discrimination, or the use of rape and sexual violence as a means of destroying
groups.”506 The violent acts committed against individuals based on their gender target
truly vulnerable individuals. The egregious method of torture goes beyond what is
required to satisfy the elements of the crimes. Often crimes are committed publically,
adding to the cruel, inhuman and degrading treatment experienced by the victim.
Individuals are often lashed, up to 100 times in public for not disobeying orders such as
not wearing veils,507 women are raped in front of their children,508 people are thrown off
buildings after being tortured509 and people are beheaded in public settings.510

500

U.N. HRC, supra, note 488, ¶ 52.
Id. ¶ 177.
502
See UNOSAT Live Map, Complex Emergency Iraq, CE20140613IRQ Damage Assessment,
https://unosat.maps.arcgis.com/apps/webappviewer/index.html?id=3356c7f1659a4282a08fa188208036d7.
503
U.N. HRC, supra, note 488, ¶ 99.
504
The OTP assesses the manner of commission of crimes by looking to the “means employed to execute the
crime, the degree of participation and intent of the perpetrator (if discernible at this stage), the extent to which
the crimes were systematic or result from a plan or organised policy or otherwise resulted from the abuse of
power or official capacity, and elements of particular cruelty, including the vulnerability of the victims, any
motives involving discrimination, or the use of rape and sexual violence as a means of destroying groups.” Id. ¶
64.
505
U.N. HRC, supra, note 488, ¶¶ 31, 114, 156, 167.
506
OTP, Prelim Examinations, supra, note 275, ¶ 64.
507
Documentation #47, 69, 95, 136, 166.
508
Documentation #93, 161, 164.
509
Documentation #55, 56, 136, 162.
510
Documentation #59, 88, 148.
501

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 Afterwards, ISIS publicizes their crimes as victories.511 In the present case, it is clear that
ISIS is targeting the most vulnerable of victims, and its motive forthrightly involves
discrimination. ISIS is also using sexual violence as a “tactic of terror and a core element
of their ideology and modus operandi.” 512
200. For the preceding reasons a case against ISIS’s leadership for the commission of genderbased crimes in Iraq is admissible pursuant to the principles of complementarity and
gravity enshrined in Article 17 of the Rome Statute.

V. INTERESTS OF JUSTICE
201. The OTP should investigate and prosecute ISIS members for their gender-based crimes
because doing so would not be contrary to the interests of justice under Article 53 of the
Rome Statute.513 Rather, it would manifestly serve the interests of justice.
202. According to the Rome Statute, the “interests of justice” inquiry involves consideration of
the gravity of the alleged crimes and the interests of victims.514 ISIS’s policy of genderbased persecution features institutionalized depravity with far reaching consequences for
incredibly vulnerable and defenseless victims.
203. First, as set forth above in Section (IV)(E), the alleged crimes are of the utmost gravity.515
In its 2007 and 2014 Policy Papers, the OTP affirms its commitment to redressing
gender-based crimes.516 As the OTP recognizes, “sexual and gender-based crimes are
amongst the gravest under the Statute.”517 ISIS is brazenly flouting the imperatives the
OTP so cogently articulated in its Policy Papers in a manner that resembles pure and
totalizing evil. ISIS has established State-like machinery for perpetrating heinous genderbased atrocities including mass execution, sexual slavery, torture, and mutilation. For
example, ISIS’s “war spoils” sex slave departments and directives and online manuals for
gender-based crimes demonstrate the elaborate infrastructure ISIS uses to commit genderbased crimes on a massive scale. It is difficult to imagine crimes of a graver nature.
511

Documentation #66, 76, 88.
European Parliament Members’ Research Service, supra, note 198.
513
Rome Statute, Articles 53(1)-(2).
514
Id. Article 53(2).
515
OTP, Policy Paper on the Interests of Justice, at 5 (September 2007).
516
Id. at 10.
517
OTP, Sexual and Gender-Based Crimes, supra, note 307, ¶ 3.
512

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 204. Second, OTP action would help protect the “interests of victims,” including their interests
in both “seeing justice done” and ensuring their own safety, well-being, dignity, and
privacy.518 ISIS continues to target female and LGBT victims because, as people facing
widespread discrimination within Iraqi society519, they are among the most vulnerable
members of the population. As explained in Sections (IV)(C), and (D) no investigations
or prosecutions have been initiated against ISIS members for gender-based crimes.
Moreover, ISIS is not currently subject to any alternative justice mechanisms, such
as truth seeking and reparations programs, for its gender-based crimes in Iraq.520 Impunity
prevails, encouraging the recurrence of these crimes. The physical and psychological
well-being of victims cannot be achieved while the perpetrators remain at large.
205. Finally, it is only in “exceptional circumstances” that a case otherwise qualified for
selection by the OTP should not be pursued on the basis that it would not serve the
interests of justice.521 As the OTP itself stated in its 2007 Policy Paper on the Interests of
Justice “bearing in mind the objectives of the Court to put an end to impunity and to
ensure that the most serious crimes do not go unpunished, a decision not to proceed on
the basis of the interests of justice should be understood as a course of last
resort.”522 There can be no basis for charting that course of last resort in the present case.

VI. CONCLUSION
206. On the facts presented here, there is reasonable basis to believe that foreign fighters in
ISIS have committed gender-based crimes within the jurisdiction of the Court, that the
case would be admissible under Article 17, and that an investigation would serve the
interests of justice.

518

OTP, Interests of Justice, supra, note 515.
See, Lisa Davis, Women Confronting ISIL: Protecting Women’s Rights in the Context of Conflict, 22 Sw. J.
Int’l L. 27 (2016).
520
OTP, Policy Paper on the Interests of Justice, September 2007, at 8–9.
521
Id. at 1.
522
Id. at 9. See also Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an
Investigation into the Situation in the Republic of Kenya of 31 March 2010, PTC II, ICC-01/09-19, ¶ 63, n. 35;
OTP, Interests of Justice, supra, note 515, at 1 (noting the general presumption in favor of the Court exercising
jurisdiction, so long as the affirmative, jurisdictional and admissibility requirements are met).
519

84