© 2015 The Texas Lawbook.
By Kerry Curry
(April 1) – Andrews Kurth recently took a lead role in seeking a historic declaration from U.S. Secretary of State John Kerry on behalf of several humanitarian groups that ISIS committed genocide against the Yazidis, Christians and Shia Muslims in Iraq.
The memorandum — submitted on behalf of the Philos Project, the Iraqi Christian Relief Council, the Assyrian Aid Society of America and the American Mesopotamian Organization — was in support of an investigation under way by the State Department on the genocide question.
“This was a cause we couldn’t turn away,” said Andrews Kurth partner Matthew Dowd, based in the firm’s Washington, D.C., office. “We are glad the State Department came to the right decision. It was an opportunity that was tailor-made for us.”
Two days after Andrews Kurth filed its memorandum, lawyers from Lewis Roca Gothgerber Christie’s Colorado office filed a 200-page report on behalf of Knights of Columbus also seeking a declaration. The House of Representatives passed a resolution 393-0 declaring a genocide on March 14, and Secretary Kerry made a formal announcement on the declaration on March 17.
The declaration is believed to be only the second such formal declaration by the United States regarding an ongoing genocide since World War II, according to Andrews Kurth. The other came from former Secretary of State Colin Powell over atrocities in Darfur, Sudan.
The Andrews Kurth team was led by Houston associate Eric Osborne, who attended seminary prior to law school and said he has always been interested in religious freedom issues. He learned one of the nonprofits, the Philo Project, was seeking help in writing a letter to Secretary Kerry from a listserv about religious freedom issues and brought the idea forward.
“It sounded like a fascinating and unique project, and we ran it by the powers that be and they agreed that this would be a fine project for the firm to do pro bono,” Osborne said.
From there, a team of eight Andrews Kurth attorneys came together. Besides Osborne, Houston associate Ryan McRearty and Washington, D.C., partner Matthew Dowd were credited by Houston partner Richard Deutsch, who lent his international law expertise to the cause, as taking lead roles in the effort.
Austin partner Scott Brister and Houston associates Austin Priddy, Jared Weir and Patrick Yarborough also assisted.
“It seems daunting to get someone to declare genocide, but as far as delving into the different international law aspects, that was a pretty fluid process as we were comfortable in that area,” Deutsch said.
The firm’s research included trying to figure out the facts from reputable sources, as reporters often aren’t present when genocide is occurring. The humanitarian groups the lawyers worked with were traveling to Iraq and bringing back reports, but the firm also sought out reputable media reports, international criminal cases on genocide, historical information about past genocides and scholarly articles about Islam.
Andrews Kurth ultimately submitted a 37-page memorandum in support of a genocide declaration.
The team focused on the question of ISIS’s specific intent to commit genocide against the Christian community in Iraq. Specifically, the question was whether ISIS’s actions met the strict legal requirement for genocide in view of ISIS’s purported option of allowing Christians to pay what is called a “jizya tax” in lieu of death or forced conversion.
“ISIS purportedly offers the Assyrian Christians three options: (1) convert to Islam, (2) assume dhimmi status and pay an associated jizya tax, or (3) leave the territory,” the memorandum says. Dhimmi is a historical term that refers to a protected but restricted status. Jizya is a tax levied on non-Muslims.
“The facts suggest that, in reality, there is no choice. Those who refuse or are otherwise unable to comply are executed, and in many instances the option of paying the jizya tax is not made available. The evidence therefore suggests that the jizya tax is not a real option and may be just a pretext to justify ISIS’s atrocities.”
Modern day Muslim countries have rejected the constructs of dhimmi status and the jizya tax, which are generally foreign to a secular worldview that religious freedom is a universal right.
The process of writing the memorandum weighed heavily on the attorneys emotionally, Osborne said.
“It’s very hard to read about these facts, both what is happening now and the facts of what happened in the past,” Osborne said. “I found [it] particularly challenging to read about these things in which nothing was done.”
When the declaration came down, both attorneys and their clients were emotional about the outcome, he said. “This declaration has given hope to a million people who have had terrible things happen for years,” he said, “and now, suddenly, the world is paying attention.”
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