By: Paul Weber, Junior Research Associate, PILPG-NL
Since April 2020, Taha Al-J., an Iraqi national, has been standing trial before the Higher Regional Court (HRC) of Frankfurt, Germany, for genocide, war crimes, and crimes against humanity, among other counts. The trial is significant given that it is the first time a court has been tasked to hold a member of the Islamic State (IS) responsible for committing genocide against members of the Yazidi religious minority in Iraq. Moreover, the way in which the case found its way into the Frankfurt courtroom stands out for its particularly active reliance on universal jurisdiction for international crimes. Furthermore, the accessory prosecution's, who represents the surviving victim in the criminal proceedings, recently requested the introduction of an additional charge of gender-based persecution as a crime against humanity against the defendant. This blog post aims at further illuminating the different elements, which make this case a particularly exciting example of the domestic prosecution of international crimes.
Facts of the Case
In 2015, Mr. Al-J. had bought a Yazidi mother and her young daughter as slaves. The two women were captured by IS during its attack on Iraq’s Sindjar region – an attack that the court described as aimed at exterminating the Yazidis. Al-J. allegedly forced his victims to do household chores, while depriving them of proper nutrition and physically punishing them. In a particularly heinous “punishment”, the defendant tied the daughter to a window on a hot summer day, due to which she ultimately died of thirst. One question for the court is thus whether the crimes committed against the two victims in this case may qualify as genocide.
Charges of Genocide
In his testimony, expert witness Guido Steinberg, a researcher on Islamic extremism, described the conduct in question in this case as far from an isolated incident. According to Steinberg, IS regards the Yazidis as worshippers of the devil (source in German) who need to either be converted or exterminated. In the eyes of the court, IS had systematically attempted to enslave and exterminate the Yazidi people during its organized attack on Iraq’s Sindjar region. This could be a crucial observation if the court is to qualify the defendant’s conduct as genocide, as proving the required mental element of genocidal intent is particularly onerous.
Germany incorporated the Rome Statute of the International Criminal Court into domestic law through its Code of Crimes Against International Law (CCAIL) of 2002. In Paragraph 6, the CCAIL recognizes murder and other violent conduct against members of a national, religious, or ethnic group as constituting the offense of genocide, if it is committed with the intent to destroy this group in whole or in part. Consequently, if the court finds that the murder of the child was a conscious part of a larger genocidal effort, it may convict the defendant as a genocidaire. Thus, even a single murder may be sufficient to find that Al-J. committed genocide.
In the context of the case against Mr. Al-J., it is crucial for the prosecution to prove that Mr. Al-J. committed his crimes with the intent to contribute to the extermination of the Yazidis. As Nathalie von Wistinghausen, who represents the mother in this case, remarked, this “special intent to commit genocide, as defined by the jurisprudence, has to meet a very high threshold and is, therefore, more difficult to prove.” So far only the UN and a few other international organizations and states had found the IS persecution of the Yazidis to be a genocide. If the prosecution succeeds, the Al-J. case will become the first time worldwide that a court recognizes the crimes against the Yazidis as genocide.
Universal Jurisdiction
Another reason why this case is noteworthy is the way in which it ended up in front of the HRC Frankfurt. In recent years, the German legal system has seen numerous cases concerning international crimes committed by IS in Syria and Iraq. Past cases, however, predominantly involved either German citizens who had fought for IS or foreigners that had sought refuge from the conflict in Germany.
Although these crimes did not occur on German territory and often did not involve German citizens, German courts could claim universal jurisdiction over them. In the Al-J. case, by contrast, Germany did not merely claim jurisdiction over a suspect present on its territory, but actively sought universal jurisdiction. In fact, in 2019, the case against his wife, a German citizen who also stands trial before a court in Munich, revealed the grave crimes that Mr. Al-J. had committed. As a result, Germany subsequently issued an international arrest warrant for Mr. Al-J. Greek authorities were able to apprehend him in Athens in 2019 and extradite him to Germany, where the Frankfurt HRC opened the proceedings against him.
Introducing gender-based persecution
The case has the potential for further ‘firsts’. As recently as December 2020, the accessory prosecution, who represents the mother in this case, requested the reevaluation of the defendant’s charges for crimes against humanity to include paragraph 7 of the CCAIL, which criminalizes gender-based persecution as a crime against humanity. The gendered nature in which IS organized the alleged genocide of the Yazidi becomes particularly apparent in its slave market. Guido Steinberg also pointed to the fact that IS only enslaved Yazidi women, as he stated in his testimony. Many observers, therefore, call on the court to recognize this defining characteristic of the crimes in question. For Germany, it would be the first time gender-based prosecution is applied since its introduction through the CCAIL in 2002. Such a step would make the case part of a larger development towards the legal recognition of gendered forms of violence, as for example the ICC’s current Al-Hassan case. How the German court will apply the provision, should it decide to do so, could thus impact the overall jurisprudence on gender-based persecution world-wide as a leading example.
The trial is ongoing, and it is impossible to predict its outcome. No matter what the Frankfurt judges will decide, it promises to be a landmark judgment - on the crimes against the Yazidis, genocide, gender-based violence, and the way international justice is dealt in general.