Source: Alliance/DPA, 10.12.2021
Author: Hanorah Hardy
In a landmark ruling in Frankfurt, Germany, Taha A.J, an Iraqi national and member of the Islamic State (ISIS), was convicted of genocide, crimes against humanity, war crimes, aiding and abetting war crimes and bodily harm resulting in death. Taha A.J, who was arrested in Greece and extradited to Germany two years ago, will serve life in prison. The decision represents the first conviction of a member of ISIS for genocide anywhere in the world.
Taha A.J. joined ISIS prior to 2013. The case brought against him involved him and his wife purchasing and enslaving a five-year-old Yazidi girl named Reda and her mother in 2015. Both were held captive, beaten and subject to various other forms of violence, including rape and sexual assault. Reda died after Taha A.J chained her outdoors to the bars of a window and left her in the heat as a punishment for wetting the bed. The Higher Regional Court in Frankfurt held that, as a member of ISIS, Taha A.J intended to eliminate the religious minority of the Yazidis by purchasing the two Yazidi women and enslaving them. The court sentenced the defendant to life imprisonment. His wife, “Jennifer W”, a German national, was sentenced in a separate trial last month to 10 years in prison for aiding and abetting the crimes against Reda and her mother.
Although neither Taha A.J. nor his victims are German nationals, and the offences were not committed on German territory, German courts exercised their jurisdiction over the crimes of genocide, war crimes and crimes against humanity under the principle of universal jurisdiction.
The Yazidi community, an ethnoreligious group, largely based in Northern Iraq, has faced many years of violence, oppression and threatened extermination. In 2014, ISIS launched an attack, invading Iraq and large parts of Syria, establishing a self-declared “Islamic empire”. The group took over the Yazidi homeland in the Sinjar region of northern Iraq, home to almost 420,000 people, and embarked on a campaign of genocide against the Yazidi community. ISIS carried out large-scale massacres against the civilian population involving mass killings, sexual violence, torture and enslavement. Over 5,000 people were killed, and over 400,000 people were displaced from their homes. To date, more than 2,800 Yazidi women and children are still held captive by the Islamic State or remain missing.
The United Nations Independent International Commission of Inquiry on the Syrian Arab Republic (“Inquiry on Syria”) stated that in the aftermath of the 2014 attack, “no free Yazidis remained in the Sinjar region, the 400,000-strong community had all been displaced, captured, or killed”. To this day, there are an estimated 360,000 displaced Yazidis living in camps in the KRI, while a further 90,000 have fled from Iraq since 2014.
Most notibly, the Inquiry on Syria recognised that the Islamic State’s actions against the Yazidi community amounted to war crimes, crimes against humanity and genocide. Furthermore, this May, a UN investigative team tasked with investigating ISIS atrocities in Iraq, Unitad, said it had established “clear and convincing evidence that genocide was committed by [ISIS] against the Yazidis as a religious group”.
The principle of Universal Jurisdiction
The legal principle of Universal Jurisdiction constitutes the idea that any national court may prosecute individuals accused of having committed heinous offenses in violation of treaty law and international law. These include, but are not limited to: crimes against humanity, war crimes, genocide and torture. Neither the defendants nor the victims need to be residents of the country in which the trial is held. The crimes could have been committed anywhere, with no statute of limitations. Richard Dicker, director of the International Justice Program at Human Rights Watch explained the basic rationale for Universal Jurisdiction as “crimes that are so offensive that we have a communal interest in trying them through our domestic courts”. The perpetrators of such crimes are considered hostis humani generis — “enemies of all mankind”.
There are several global legal mechanisms set up to bring perpetrators of crimes of such scale to account, such as the International Criminal Court (ICC). However, a series of complex issues accompany these mechanisms. For example, only countries that have accepted the Rome Statute, the treaty that created the ICC, can bring in cases. 123 countries have accepted the Rome Statute, however, Iraq is not included in this number. Also, some countries lack adequate judicial systems or the needed political will to prosecute crimes of this magnitude committed on their own soil. Legal experts identify this as a threat to a core tenet of the rule of law everywhere. Therefore, Universal Jurisdiction is a crucial means to “hold the people who commit these egregious crimes responsible but won’t be held accountable at home”.
Natalie von Wistinghausen, who represented Reda’s mother in the trial, stated that “The genocide of the Yazidi has already been recognized by international bodies like the UN and the European parliament as well as other national parliaments. But for a court of law to legally define the crimes ISIS committed against the Yazidi people as genocide is a ‘first’”.
Nobel peace prize laureate Nadia Murad, who is herself a survivor of atrocities committed by ISIS, said the verdict was “a win for survivors of genocide, survivors of sexual violence, and the entire Yazidi community”; she continued that “Germany is not only raising awareness about the need for justice, but is acting on it. Their use of Universal Jurisdiction in this case can and should be replicated by governments around the world”
However, the verdict should only be a starting point. Further proceedings must follow in order to shed light on the serious crimes against the Yazidi community and those who perpetrate them. “The process in Frankfurt is an important step. But further trials are needed, particularly into gender-based violence such as mass rapes, forced marriages and other forms of sexualized violence”, said Alexander Schwarz, Amnesty International Germany, International Law Expert. To date, approximately 2,763 Yazidi women and children who have been victims of forced or involuntary disappearances are still missing. Intensified efforts and continued international cooperation must continue to address the previous and ongoing human rights abuses suffered by the Yazidi community at the hands of ISIS. In order to succeed, a multi-level approach to proceedings under Universal Jurisdiction should include other judicial mechanisms not only at the international level but at the national level as well. States have a shared moral responsibility to end impunity, hold perpetrators to account and continue on the pathway to full justice.
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