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Can the Kurdish Peshmerga fighters be held liable for abandoning the Yazidis in Sinjar?

Updated: Aug 9, 2023

On August 3, 2014, Daesh attacked Yazidis in Sinjar, Iraq. In just one day thousands of Yazidis were killed or abducted; tens of thousands were forced to flee.

As reported by the International Independent Commission of Inquiry on the Syria Arab Republic (IICoISAR), more than 3,200 Yazidi women and children have been held in captivity in Syria since.

Only a few days later, Daesh unleashed its genocidal campaign against Christians in Nineveh Plains.

As the debates on how to bring Daesh fighters to justice for their crimes in Iraq continue, the question of the responsibility of other actors resurfaces. In a recent report ‘Iraq: At Any Cost: The Civilian Catastrophe in West Mosul, Iraq, Amnesty International claims that the Iraqi army and allied forces were in breach of the law of wars and armed conflicts when retaking Mosul and have committed war crimes.

This is not the first time such a claim has been made. A few months ago, a video showing Iraqi soldiers torturing terror suspects circulated the media. In response to the video, the United Nations Assistance Mission for Iraq called on the Government of Iraq to investigate the allegations. As Mosul was liberated just a few days ago, the evidence of any potential war crimes is still to be collected and investigated. The involvement of Iraqi soldiers in war crimes will be the subject of debates in the months to come.

Of as much concern is another investigation which may have to be considered into the abandonment of the Yazidis in Sinjar in August 2014 by Peshmerga fighters. Despite the fact that some of the evidence has been in the public domain for over two years, this case may gain more attention following the recent Hague Appeals Court ruling on the partial responsibility of the Netherlands for the losses suffered by the Mothers of Srebrenica.

On June 27, 2017, the Hague Appeals Court found that Dutch peacekeepers were co-responsible for the deaths of men and boys killed during the Siege of Srebrenica in 1995. The judgment confirmed that not only the principal perpetrators but also those who were supposed to protect the vulnerable population may be liable for atrocities if they fail to conduct their primary role. This is an important recognition that is often neglected when all eyes are on the principal perpetrators. The judgment of the Hague Appeals Court may be of relevance to building a potential case against Peshmerga fighters.

It has to be emphasised that Peshmerga were the only security force in the region in August 2014. They maintained bases and checkpoints throughout Sinjar and have been defending the area for many months if not years. However, the events of early August 2014, have shown a different side of Peshmerga. In its report They came to destroy, The IICoISAR summarised the abandonment by the Peshmerga fighters as follows:

“24. As they moved into Sinjar, ISIS fighters faced little or no resistance. Many of the Peshmerga reportedly withdrew in the face of the ISIS advance, leaving much of the Sinjar region defenseless. The decision to withdraw was not effectively communicated to the local population. No evacuation orders were issued and most villages were initially unaware of the collapse of the security situation.

25. As word spread that the Peshmerga had left their checkpoints, a few ad hoc groups of lightly armed, local Yazidi men mounted a very limited defense of some villages, such as Girzerik and Siba Sheikh Khedir, in an attempt to give their families and neighbors more time to escape. By daybreak, Yazidi families from hundreds of villages across Sinjar were fleeing their homes in fear and panic. They took little with them. Others were advised by Arab neighbors to stay in the villages and raise white flags over their houses.“

Other reports indicated that Peshmerga removed most of the Yazidi weapons, promising to protect them from the threat posed by Daesh. Some reports even suggest that they prevented the Yazidis from leaving Sinjar. It is essential that these reports and accusations are investigated.

The fundamental question that has to be asked is could Peshmerga fighters be co-responsible for the fate of the Yazidis using the precedent created in the recent Hague ruling on the Dutchbat involvement in the Srebrenica genocide?

There is a key difference between Dutchbat’s duty towards the people in Srebrenica and Peshmerga’s duty towards the Yazidis in Sinjar. Dutchbat was specifically assigned by the UN to protect people in the safe zone of Srebrenica while Peshmerga undertook this duty by default. Nonetheless, the duty of Peshmerga to protect the Yazidis may flow from the circumstances of the case. It did, afterall, undertake to protect the Yazidis in Sinjar.

First, it is clear from the repair of the IICoISAR, Peshmerga was the only security force in the area. Second, Peshmerga allegedly removed some weapons from the Yazidis and promised to protect the Yazidis. By leaving Sinjar, Peshmerga left the Yazidis vulnerable as without any protection.

At this stage, the above arguments are highly hypothetical and evidence would have to be obtained in support. The question that emerges is whether, in circumstances where Peshmerga fighters were voluntarily protecting the Yazidi people, is this different from the Dutch case? If it is true that Peshmerga promised to protect, disarmed, and even forced people to stay - the issue of liability would start shaping well.

The IICoISAR recommended to:

“(c) Undertake a public and transparent investigation into the circumstances surrounding the withdrawal of the Peshmerga forces from the Sinjar region in early August 2014, and ensure the Yazidi community is involved and kept regularly apprised the work of the investigation.“

Only a few days after the fall of Sinjar, it was reported that the President of the Kurdistan Region, Massoud Barzani, has decided to investigate some Peshmerga commanders for leaving Sinjar. The result of the investigation is unclear.

Despite the fact that it is Daesh that is the primary perpetrator of the genocide of the Yazidis in Iraq, the liability of other actors cannot be without scrutiny. Those who are assigned to protect or promise to protect by way of accepting the duty- cannot abandon people in need. What happened in Sinjar in August 2014 needs to be scrutinised. The survivors deserve the truth. (006)

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