Accountability in Third Countries
ISIL members have been prosecuted, tried and convicted for their crimes, notably against the Yazidis, before national courts of third countries on the basis of personal and universal jurisdiction. Universal jurisdiction is a legal principle that allows states to prosecute individuals for international crimes, such as war crimes, crimes against humanity, genocide, enforced disappearance or torture even if those crimes were committed in another country, and neither the victim nor the perpetrator is a national or has any other relation to prosecuting country. It is based on the premise that certain crimes are so heinous that they concern all of humanity, thus warranting all countries to prosecute the perpetrators. Whereas meaningful justice for survivors of ISIL crimes in Iraq and elsewhere cannot be delivered via trials based on universal jurisdiction alone, such legal proceedings are most welcome and have been well received by survivors and affected communities.
Summary of Convictions
Below the summary of convictions of ISIL members in Germany for international crimes committed against the Yazidis:
Taha A.-J.
- The Iraqi national was convicted by the Higher Regional Court of Frankfurt of genocide, crimes against humanity and war crimes following his enslavement and abuse of Yazidis in Iraq (see here for the judgment and here for the victim’s counsel press release).
- This was the first conviction of an ISIS member for genocide anywhere in the world and it was confirmed by Germany’s highest court (see here for the appeal decision in German and here for the victim’s counsel press release). The decision is final.
Jennifer W.
- The German returnee (and Taha A-J’s ex-wife) was convicted by the Higher Regional Court of Munich of aiding and abetting crimes against humanity through enslavement, attempted murder and aiding and abetting the war crime of attempted murder by omission (see here for a press release issued by the court and here for the press release issued by the victim’s counsel).
- The German Federal Court of Justice overturned the sentence finding that the lower instance court erred when qualifying aiding and abetting enslavement as a crime against humanity as a “less serious case” – a legal qualification that had resulted in a reduced sentence. The Federal Court referred the case back to (another chamber of) the Higher Regional Court of Munich to decide on the sentence (see here for the appeal decision).
- The Higher Regional Court of Munich affirmed the conviction of Jennifer W. and increased her sentence from 10 to 14 years imprisonment. The judges highlighted that in enslaving the Yazidi victims Jennifer W intentionally furthered ISIS’ policy of destroying the Yazidi religion – aggravating factors that have not been considered by the first instance court when deciding on the sentence (see here for the victim’s counsel press release).
Jalda A.
- The German returnee was convicted by the Higher Regional Court of Hamburg of aiding and abetting genocide as well as of crimes against humanity and war crimes for the enslavement and abuse of a young Yazidi woman. This represents the second conviction of an ISIS member for genocide for atrocities perpetrated against the Yazidi religious minority in Iraq and Syria (see here for the victim’s counsel press release). The decision is final.
Nadine K.
- The German returnee was convicted by the Higher Regional Court of Koblenz of aiding and abetting genocide, crimes against humanity and war crimes for the enslavement and abuse of a young Yazidi woman This marks the third conviction of an ISIS member for genocide perpetrated against the Yazidis (see here for the court’s press release and here for the victim’s counsel press release).
Sarah O.
- The German returnee was convicted by the Higher Regional Court of Düsseldorf of deprivation of liberty, aiding and abetting rape, enslavement and religious and gender-based persecution as crimes against humanity. For the first time ever, a court handed down a conviction for religious and gender-based persecution (see here for the victim’s counsel press release). Proceedings were closed to the public as the defendant was a minor during part of the time the events took place. Therefore, limited information is publicly available on the case. The decision is final.
Nurten J.
- The German returnee was convicted by the Higher Regional Court of Düsseldorf of committing war crimes and aiding and abetting crimes against humanity for abuses against a Yazidi woman (see here for the victim’s counsel press release). The decision is final.
Omaima A.
- The German returnee was found guilty by the Higher Regional Court of Hamburg of aiding and abetting crimes against humanity for her involvement in the enslavement of two Yazidi women (see here for the victim’s counsel press release). The decision is final.
Romiena S
- The German returnee was convicted by the Higher Regional Court of Celle of crimes against humanity including for enslaving a Yazidi woman (see here to the Court’s press release).
UN Support
UN Support to Ensure Accountability for ISIL Crimes in Iraq
By signing a Joint Communiqué with the United Nations on the Prevention and Response to Conflict- Related Sexual Violence in 2016, Government of Iraq pledged to cooperate with the UN and prioritize, inter alia, “ensuring accountability for sexual violence through strengthening the capacity of national and regional authorities, including the Kurdistan Genocide Committee to document, investigate and prosecute such crimes, according to applicable national laws”.
In response to a 2017 Iraqi call for international assistance in ensuring that ISIL members are held accountable, the UN Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD) was set up through UN Security Council Resolution 2379 of 21 September 2017. UNITAD is mandated to support Iraqi domestic efforts to hold ISIL accountable for crimes it committed in the country by “collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide committed by the terrorist group ISIL (Da’esh) in Iraq, to the highest possible standards … to ensure the broadest possible use before national courts, and complementing investigations being carried out by the Iraqi authorities, or investigations carried out by authorities in third countries at their request.” Furthermore, head of UNITAD is authorized to “work with survivors, in a manner consistent with relevant national laws, to ensure that their interests in achieving accountability for ISIL are fully recognized”.[1]
On May 27th the UN Security Council unanimously adopted Resolution 2576 (2021) extending United Nations Assistance Mission for Iraq (UNAMI’s) mandate in Iraq where it highlighted the need to hold perpetrators of conflict-related sexual and gender-based violence accountable, to provide mental health and psychosocial support to victims, and to provide reparations and redress measures for all survivors, This call has been continually repeated in the subsequent UNSC Resolutions (2631 (2022) and 2682 (2023))extending UNAMI`s mandate in Iraq.
Both the Human Rights Committee and the Committee Against Torture in their Concluding Observations on Iraq, issued in March and May 2022 respectively, called the Iraqi Government to investigate and prosecute sexual offences committed by ISIL members during the armed conflict in Iraq and ensure perpetrators are punished and the victims or members of their families accorded full reparation. The Committee Against Torture highlighted that Iraq should guarantee the victims’ right to participate in criminal proceedings effectively, accompanied by safeguards to avoid stigmatization, hence re-traumatization.
Special Adviser of the UN Secretary-General on the Prevention of Genocide also highlighted the importance of efforts to ensure accountability for atrocity crimes committed in Iraq so that the dignity of survivors is restored and future atrocities are prevented.
[1] UN Security Council. (2017). SC. Res. 2379. Para 2,5,3.
Iraq
Necessity of ensuring criminal accountability has also been recognized by Iraqi lawmakers as the Yazidi Survivors Law enacted in March 2021 declared, in Article 7, that crimes committed by Daesh against the Yazidis, Turkmen, Christian and Shabak minority groups shall be considered genocide and crimes against humanity, and that the Ministry of Foreign Affairs would work to reveal these crimes in international forums and to initiate criminal proceedings against the perpetrators.