Highlight 7/2022 – What a win for the Yazidi community : German court hands down first genocide conviction against ISIS member

Marie Marthe Renée Letoublon, 11 February 2022

Seven years ago, ISIS members invaded Sinjar in northern Iraq, home to the Kurdish-speaking Yazidi minority, killing and displacing thousands of Yazidis. Men were forced to convert or got executed, women were sold, raped, beaten, and enslaved. Some women were able to escape, including Nadia Murad, Nobel Laureate, who later came to seek justice, including recognition of the crime of genocide for her people.

On 30 November 2021, the Higher Regional Court in Frankfurt, Germany, found Iraqi national Taha al-J., an ISIS member, guilty of genocide, crimes against humanity, and war crimes following his enslavement and abuse of Yazidis and sentenced him to life imprisonment. This represents the first conviction of an ISIS member for genocide anywhere in the world.

Indeed, if the genocide has already been qualified by the UN and the European Parliament especially, it is a “first” for a Court to legally define the ISIS crimes committed against the Yazidi people as genocide.

This unprecedented conviction was made possible by the German court’s application of the principle of universal jurisdiction. Indeed, Taha al-J. is not a German national, his victims are not German and his crimes have not been committed on German territory. The International Criminal Court (ICC) could have been expected to prosecute. And the Security Council had been called upon to refer the matter to the ICC. The German court, however, took the lead and did justice.

German courts have jurisdiction over the crimes of genocide, war crimes, and crimes against humanity under the principle of universal jurisdiction which means that crimes like this must be prosecuted wherever and whenever they occur. It is a powerful tool at the service of International Justice. This infringement on the sovereignty of states is justified by the necessity for protecting common interests, human values, and the victim’s access to justice. It can be seen as a supplementary instrument in the fight against international crime, which fills a gap in the ICC’s jurisdiction.

Indeed, it must be noted that states have the primary responsibility to investigate et prosecute international crimes. If states fail to do so, the ICC can intervene according to the complementary principle. But it has no universal jurisdiction. In other words, it can only prosecute crimes committed on the territory of a state that is a party to the Rome Statute or committed by a national of a state party (article 12 of the Rome Statute). Only the Security Council can extend the jurisdiction of the ICC beyond article 12 through a referral. However, for obvious political reasons, it is not easy to reach “an agreement” within the Security Council, particularly because of the veto of the P5.

In the case of Yazidis, as Iraq is not a party to the Rome Statute, in the absence of a Security Council referral, the ICC could not take up the case. So, the principle of universal jurisdiction allowed justice to be done for Yazidis and the crime of genocide to be recognized.

However, this principle is not so easy to implement and depends on the political will of States. Although it is based on international law, its implementation is based on national laws. It is up to each State to adopt their legislation but a large majority of states have not yet done it. The legislative conditions for the implementation of the principle determine their political will to ensure its application or not. Furthermore, it is up to them to provide themselves with adequate financial resources and mechanisms. Last but not least, States must have the political will to investigate and prosecute international crimes. So Germany’s commitment should be highlighted.

However, because in some cases, the principle of universal jurisdiction represents the only way to prosecute and sentence the most heinous crimes,  the recent convictions (conviction of an agent of the Syrian regime for crimes against humanity by the Regional Court of Koblenz – Germany on 24 February 2021 and conviction for war crimes in Liberia by the Federal Court of Bellinzone – Switzerland on 18 June 2021 for instance) will perhaps encourage other states to do the same … and do justice.

Marie Marthe Renée Letoublon, Highlight 7/2022 – What a win for the Yazidi community : German court hands down first genocide conviction against ISIS member, 11 February 2022, available at www.meig.ch

The views expressed in the MEIG Highlights are personal to the author and neither reflect the positions of the MEIG Programme nor those of the University of Geneva.