The UN Human Rights Council has published a report on the crimes perpetrated by Da’esh against the Yazidi. The report, They came to destroy, states that Da’esh has

sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidi children from being born, including forced conversion of adults, the separation of Yazidi men and women, and mental trauma; and the transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis. The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part.

Defining genocide

The act of genocide is defined in the Convention on the Prevention and Punishment of the Crime of Genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

This definition of genocide has been included in article 6 of the Rome Statute of the International Criminal Court.

Case law

The International Criminal Tribunal for Rwanda was the first to recognise rape and sexual violence as the crime of genocide if there is the specific intent to destroy, in whole or in part a national, ethnical, racial or religious group. In the Akayesu case, the accused was convicted of genocide through “aiding, abetting, ordering, or encouraging, and sometimes witnessing, more than two dozen rapes and other sexual assaults at the bureau communal where, by dint of his authority, he could have prevented them”. The ICTR found that sexual violence were constitutive elements of genocide in Rwanda because it caused serious bodily and mental harm, it prevented births and also it resulted in the forcible transfer of children from one group to another group and its purpose was to destroy in whole the Tutsi group.

Security Council resolutions

Security Council Resolutions 1820 (2008), 1888 (2009), 1960 (2010), and 2106 (2013) label the widespread and systemic use of sexual violence against women and girls as a crime against humanity and constituent of genocide.

Applicability in Australia

Australia’s Genocide Convention Act 1949 provides for Australia’s ratification of the Genocide Convention, but this does not make genocide part of Australia law. The Genocide Convention provides that “the Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III” of the Convention.

It was not until 2002 when the crimes under the Rome Statute for the International Criminal Court were incorporated in Division 268 of the Criminal Code Act 1995 that genocide became illegal in Australia.

Implementation of all the Women, Peace and Security UN Security Council Resolutions occurs through Australia’s National Action Plan on Women, Peace and Security 2012-2018.