By Charles Johnson
As August approaches, so does the tenth anniversary of the 2014 Yezidi genocide in Sinjar, Iraq—and with it, the question of accountability in US courts of law. Admittedly, the US government and legal system have been working to hold perpetrators of the genocide—members of the self-styled Islamic State of Iraq and al-Sham (ISIS)—to account. These efforts include US Department of Justice (DOJ) cases against individuals and companies on charges of material support for terrorism. Conspicuously, though, there have been no charges seeking to hold any alleged perpetrators, nor their corporate enablers, to account specifically for genocide against Yezidis or other ethno-religious minority communities in Iraq and Syria.
The absence is significant, as accountability for genocide is an integral part of a surviving community’s healing. Nadia Murad, Nobel Peace Prize laureate and Yezidi survivor of ISIS enslavement, has spoken directly on the issue, stating, “Convictions of ISIS members for genocide are vital to our healing process; they let us know that the world has seen, and condemns, the efforts to eradicate the Yezidi people.”
Since 2016, the United States has made some progress in this regard with the State Department’s recognition of genocides in Iraq, Xinjiang, the Ottoman Empire, and Myanmar. But during the same period, US genocide law has failed to keep pace. While there are some logistical reasons for the lack of prosecutions—notably, the lack of direct perpetrators on US territory—the US justice system can instead pursue those otherwise complicit: corporations. However, alarming gaps in US genocide law shield corporations from accountability while denying comprehensive justice to victims and survivors.
Shortcomings in US genocide law and policy
In the US legal system, the Genocide Convention Implementation Act (codified under 18 US Code § 1091) constitutes most of the legal criminal bullwork aimed at genocide prosecution. The code mirrors much of the 1948 Genocide Convention’s language, prohibiting actions with the “specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group.”
In some ways, the law’s reach extends beyond the Genocide Convention’s scope, allowing authorities to hold corporations criminally liable for federal crimes, including genocide, committed by their employees, officers, or agents in their scope of employment. In contrast, the International Criminal Court, and even some countries, cannot hold corporations themselves accountable.
Despite this broader scope, the act remains poorly equipped to handle cases of genocide in general, let alone to prosecute corporations specifically. For instance, according to the Open Society Justice Initiative, the code’s wording renders the act less effective than the Genocide Convention. Possibly most damaging to the law’s breadth is the act’s (18 US Code § 1093) definition of “substantial part.” Where the Genocide Convention does not require “substantial” destruction in the first place, the act requires the destruction of “a part of a group of such numerical significance that the destruction or loss of that part would cause the destruction of the group as a viable entity within the nation of which such group is a part.”
US and international law also differ in defining the degree of mental harm constituting genocide. US code requires “the permanent impairment of the mental faculties…through drugs, torture, or similar techniques,” compared to the Genocide Convention’s broader protection of victims suffering “serious…mental harm.” Therefore, the code’s variation from international law substantially limits the recognized scope and qualifying acts of genocide.
Beyond wording, other legal factors continue to impede genocide prosecution. For example, temporal jurisdiction prevented prosecutors from bringing cases prior to the act’s passage in 1988, and the code only allowed for trying foreign nationals after the Genocide Accountability Act’s passage in 2007.
The issue of mens rea, or “mental state,” also poses a unique challenge to prosecutors seeking corporate accountability for genocide. Mens rea requires proof of express genocidal intent, but international interpretations of this requirement have remained vague and inconsistent. Mens rea under US law becomes even more complicated when introducing secondary liability, as some states’ caselaw interpretations require a complicit party to possess the same mens rea as the direct perpetrator, while other states’ caselaw does not. This divide reflects a broader international debate and complicates the legal considerations for possible US cases against corporations, potentially disincentivizing prosecutors.
But one of the greatest obstacles facing genocide prosecution is the lack of US policy prioritizing such cases. Genocide charges require political approval from the assistant attorney general of the Criminal Division of the DOJ, but little is likely to change without political support backing this approval. Gev Iskajyan, national grassroots director of the Armenian National Committee of America, acknowledged this fact in 2021, simultaneously praising President Joe Biden’s recognition of the Armenian genocide as “a fundamental step in that ladder to justice” and clarifying that true justice requires more substantive action from political leaders. Indeed, the lack of political support and accompanying legal obstacles have effectively dissuaded prosecutors from indicting anyone on genocide charges since the Genocide Convention Implementation Act’s passage in 1988.
Litigating the Yezidi genocide
Nowhere in recent litigation has this dissuasion been more apparent than with efforts to address corporate involvement in ISIS’s genocide against the Yezidi community. The genocide began on August 3, 2014, when ISIS launched a campaign in Sinjar, killing more than five thousand Yezidis and taking 6,800 more into captivity, where they faced brainwashing, physical abuse, and sexual slavery. ISIS did not achieve this persecution in isolation. The organization received material assistance and took advantage of lax oversight on social media platforms to further its genocidal program. Without criminal cases charging corporations with complicity in genocide—whether from lack of political will or the shortcomings of the law—American and Yezidi cases in the United States have instead used civil provisions that do not cover liability for genocide.
Legal cases against Lafarge, a French cement manufacturer, stand as an excellent example of this phenomenon. In 2022, as a result of a DOJ investigation, the company pled guilty to conspiring to provide material support to foreign terrorist organizations. The company was ordered to pay $777.78 million in fines and forfeitures for cooperating with ISIS and al-Nusrah Front in exchange for a Lafarge factory’s security in Syria. Emboldened by the DOJ’s success, American Yezidis have since opened a similar civil suit based on Lafarge’s alleged violation of the Antiterrorism Act.
Undoubtedly, prosecuting the company under the United States’ expansive legal framework for terrorism is more likely to succeed than a case under genocide law. The DOJ has historically prioritized terrorism cases, creating more robust legislation and caselaw that prosecutors can draw from, and often more favorable provisions. For example, extraterritorial jurisdiction over the crime of material support for terrorism is far-reaching, covering, e.g., an offense that “occurs in or affects interstate or foreign commerce.” Furthermore, any effort to hold Lafarge accountable while obtaining funds for Yezidi victims and survivors is laudable. However, Lafarge knowingly and willfully continued illegal payments to an organization actively committing genocide, yet has not had to answer for these uniquely harmful acts.
As another example, a separate group of Yezidi activists is looking to hold WhatsApp, Facebook, Twitter, and YouTube accountable for the illegal slave trade of Yezidi women, which the activists allege occurred on the platforms. According to the group, these companies acted slowly and inconsistently in removing harmful material related to trafficking Yezidi women, which could be in violation of the Stop Enabling Sex Traffickers Act of 2017. However, legal experts have noted that certain provisions may shield these tech companies from civil liability through wide-ranging immunities. But even if the civil suit succeeds, the companies’ liability will only extend to sex trafficking, without acknowledging the fundamental role that slavery played in this genocide. The civil suit would bring prosecution closer to specific acts of genocide but, like the Lafarge case, would still fall short of addressing genocide directly.
Better accountability measures needed
The United States needs far better genocide accountability measures if justice is ever to follow recognition. On a legal level, several reforms could work in favor of such a pursuit. Removing the word “substantial” from the act’s current language, and expanding qualifying instances of mental harm, would help bring the law closer in line with general improvements to US genocide recognition.
Similarly, a law delineating the requirements for mens rea between perpetrators and collaborators would establish clearer responsibilities for corporations in dealing with a genocidal group. Legislation along these lines could become as effective as terrorism legislation, which seeks to define a similarly nebulous crime, to punish companies for enabling both terrorist organizations and governments committing genocide.
At the same time, and arguably more crucially, prosecutors need to pursue genocide cases. DOJ officials must be willing to bring charges under reformed genocide law, the assistant attorney general of the Criminal Division must approve these charges when they are brought, and lawmakers need to move beyond mere genocide recognition by calling for prosecution. Though legal amendments are not retroactive and cannot influence any cases related to the Yezidi genocide, conflicts with genocidal allegations rage on in Russia, Sudan, and the Gaza Strip. It is time for the US legal system to meet this reality.
Charles Johnson is a former Young Global Professional with the Atlantic Council’s Rafik Hariri Center & Middle East Programs. He is a senior at the University of Kansas majoring in history, political science, and religious studies.
