Trigger warning: graphic descriptions and discussion of abuse

On 30 November 2021, the Higher Regional Court of Frankfurt convicted a former fighter of the Islamic State of Iraq and Al-Sham (ISIS) of genocide, crimes against humanity and war crimes for the enslavement and abuse of members of the Yazidi community in the city of Fallujah, Iraq. This judgment is a historical one, being the first conviction establishing that a former ISIS fighter took part in the genocidal campaign against the Yazidi religious group,[1] as well as serving as a further confirmation of the shift towards national prosecutions of gross human rights violations. 

Displaced people from the minority Yazidi sect, fleeing violence from forces loyal to the Islamic State in Sinjar town, walk towards the Syrian border, on the outskirts of Sinjar mountain, near the Syrian border town of Elierbeh of Al-Hasakah Governorate, Iraq, August 11, 2014. Picture taken August 11, 2014. REUTERS/Rodi Said/File Photo

The war in Syria and Iraq has seen the rise of ISIS, a militant extremist organisation which became prominent not only because of its jihadist doctrine, but also due to its excessive violence towards local religious minority groups such as the Yazidis. The persecution, and the sexual and gender-based violence against the Yazidis was internationally renown from the beginning of the conflict and served as a showcase for Western media about the brutality and dangerous nature of ISIS. In 2016, the Independent International Commission of Inquiry on the Syrian Arab Republic (IICISyria) published a report, where it claimed that there is enough evidence supporting that “genocide has occurred and is ongoing”.[2] The Commission urged action on that matter and protection of the minority, as well as for the recognition of the genocidal campaign, but to no avail. Earlier this year, the head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and Levant (UNITAD) made a statement before the UN Security Council affirming that based on their independent investigations ISIS has committed genocide against the Yazidi minority.[3] Moreover, he stated that the intent to destroy (dolus specialis) the targeted group, which is the cornerstone for establishing the crime of genocide, was manifested in its campaign against the Yazidis. Despite these statements, no concrete actions or affirmative statements have been made on the Yazidi genocide on the international level to this day.

That is why the present finding of the German Court constitutes a very big step towards the recognition of the Yazidi genocide and serves as an important judicial precedent for bringing to justice the genocidal campaign carried out by ISIS. The prosecution of the case at hand centres over the death of a 5-year-old Yazidi girl, who together with her mother, was enslaved by ISIS, forced to live according to Islamic rules, was regularly subjected to violence and was ultimately left to die outside in the sun as a punishment.[4] The crime of genocide[5] is notoriously difficult to prosecute, with very few successful genocide convictions on the international level, due to the almost impossible task of establishing the dolus specialis element of the crime when it comes to senior commanders and political figures. This creates a very significant accountability gap both for the victims, as well as for the affected communities, as the crimes committed against them are often framed under the umbrella of other crimes instead of genocide. The crime of genocide carries a particular weight, and acknowledging that the perpetrators had the special intent to destroy in whole or in part a targeted national, ethnical, racial or religious group as such,[6] in turn recognises  the seriousness of the act and the destructive nature it has for both the victims and their communities. Nevertheless, as it is also seen from this conviction, national prosecutions and the targeting of lower-level perpetrators can also serve as a powerful tool for rendering justice for individual victims, thus, not only closing the accountability gap, but also providing valuable judicial interpretation and precedent which could be used in the future both on the national and international levels. 

The case is adjudicated by a German national court in accordance with the principle of universal jurisdiction. The universality principle prescribes that States can claim criminal jurisdiction to try suspects (in relation to international crimes), irrespective of the nationality of the perpetrators or the victims, and irrespective of the place of commission of the crime.[7] Undoubtedly, this is a very efficient and compelling way of bringing to justice the perpetrators of international crimes in times when international justice is in a state of stagnation. In particular, in the case of the crimes committed by ISIS there is neither ICC jurisdiction on the matter, nor there is another international court that could have temporal, geographical or personal jurisdiction over the matter. Therefore, the following question needs to be asked: is universal jurisdiction the way forward nowadays, with the lack of resources for international prosecutions and the international community more and more politicising international criminal justice? The answer is more complex than it seems. Prosecutions in Western Europe are very much welcome in the current state of play and provide for the diligent compliance with human rights norms and international criminal law, as well as protection of the rights of the accused. Nevertheless, despite those overwhelming benefits, more resources and attention need to be given to local prosecutions and the judicial capacity building at the place where the atrocities were committed. In that way, victims would be able to have direct access to justice, which would in turn aid the transitional justice process and the post-conflict peace building process.

In conclusion, the recent decision of the Higher Regional Court of Frankfurt is a very important step towards the accountability of ISIS fighters for their genocidal campaign against the Yazidi religious minority. Going beyond the justice rendered for the individual victims of the case, it sets a historical precedent which judicially confirms that there was genocide committed against the Yazidis, and sends the message that those ISIS fighters who participated in the campaign will be brought to justice. The case also provides a positive step towards the developing trend of invoking the principle of universal jurisdiction in domestic courts and adjudicating international crimes on the national rather than on the international level. This in turn could be seen as a way forward considering the standstill situation in which international justice is finding itself. However, it should not be forgotten that ultimately, justice is for the victims and their societies, therefore, efforts need to be made also towards building local judicial capacity to successfully prosecute and convict the perpetrators of international crimes, rather than relying on international courts and third country prosecutions.  

This article is written in the author’s personal capacities and does not reflect the views of the institutions which they may be affiliated with.

[1] ‘German court finds former ‘IS’ member guilty of genocide’ (Deutsche Welle, 30 November 2021) <https://www.dw.com/en/german-court-finds-former-is-member-guilty-of-genocide/a-59976226> accessed 11 December 2021.
[2] UNHCR ‘They came to destroy: ISIS Crimes Against the Yazidis’ (15 June 2016) UN Doc A/HRC/32/CRP.2.
[3] UNSC Security Council Press Release: ‘ISIL/Da’esh Committed Genocide of Yazidi, War Crimes against Unarmed Cadets, Military Personnel in Iraq, Investigative Team Head Tells Security Council’(10 May 2021) UN Doc SC/14514 <https://www.un.org/press/en/2021/sc14514.doc.htm> accessed 11 December 2021.
[4] ‘German court hand down first genocide conviction against ISIS member’ (Doughty Street Chambers, 30 November 2021) <https://www.doughtystreet.co.uk/news/german-court-hands-down-first-genocide-conviction-against-isis-member> accessed 11 December 2021.
[5] See UNGA Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, accessible at <https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.1_Convention%20on%20the%20Prevention%20and%20Punishment%20of%20the%20Crime%20of%20Genocide.pdf> accessed 11 December 2021; UNGA Rome Statute of the International Criminal Court (last amended 2010)(adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, art 6, accessible at <https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf> accessed 11 December 2021.
[6] Ibid.
[7] G Hernandez, International Law (OUP 2019), 208.

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