The World's First Conviction for Genocide against the Yazidi
In-between the expectations of the international community and domestic rule of law realties, the Higher Regional Court of Frankfurt sentenced Taha Al J. to life imprisonment in a historic verdict. For the first time worldwide, a former member of the Islamic State (IS) was convicted for genocide, seven years after IS began persecuting and exterminating the Yazidis in Northern Iraq.
Taha Al J. was accused of enslaving a Yazidi woman, Nora B., and her 5-year-old daughter Reda after purchasing them at a slave market in Raqqa in the summer of 2015. The Court finds that IS had captured Nora B. and her daughter in a targeted and systematic attack against the Yazidi in the Sinjar region in early August 2014. Both were enslaved and forced to work in various households before they were purchased by Taha Al J. When enslaved by the defendant and his wife, Nora B. and her daughter suffered regular physical and psychological abuse and punishment. This included withholding food and drinkable water and chaining Reda to a window in the blazing sun, where she suffered a heat stroke and subsequently died.
The present judgment is not only the first in history to confirm that the crimes committed against the Yazidis amount to the crime of genocide. It was also the first universal jurisdiction trial to charge the crime of genocide under the Code of Crimes against International Law (CCAIL, “Völkerstrafgesetzbuch”) in Germany.
The Factual and Legal Findings of the Court
The Higher Regional Court now considers it proven that by enslaving the two Yazidi women, Taha Al J. intended to destroy the Yazidi minority in line with the ideology of IS. As such, the defendant was convicted as the direct perpetrator of the crime of genocide based on the underlying act of causing serious bodily or mental harm to a member of the group (Section 6 (1)2. CCAIL). The killing of the Nora B’s daughter was not included in the charges as the genocidal intent to kill could not be ascertained.
In combination with genocide, Al J. was further convicted as the direct perpetrator of the crimes against humanity of enslavement, torture, severe physical and mental harm as well as deprivation of liberty (Section 7 (1) 3., 5, 8., 9. CCAIL) resulting in death. Furthermore, the judgment finds the accused responsible for the war crime of torture of persons protected under international humanitarian law (Section 8 (1) 3. CCAIL) and for aiding (Section 27 (1) German Criminal Code (GCC)) the war crime of deporting or forcibly transferring, by expulsion or other coercive acts, persons to be protected under international humanitarian law and lawfully present in an area to another State or another area in contravention of a general rule of international law (Section 8 (1) 6. CCAIL).
Under the domestic criminal law framework, Al J. was convicted of both bodily harm and bodily harm resulting in death under Section 223 and 227 GCC. According to the court’s findings, the child’s death was caused by second-degree heatstroke. Although it had previously been disputed by the defence, the court considered the fact of the child’s death established. However, it did not find that Taha Al J. acted with conditional intent to kill. It had been objectively foreseeable that the child would die. Yet, when investigating the intent, the Court took the attempt to give the child water and drive her to the hospital into account, although most-likely she had already died at that point.
The defendant was ordered to pay Nora B. € 50,000 as compensation for the non-material damage she has suffered (by way of an adhesion action (Section 403 et seq. German Code of Criminal Procedure (GCCP)). The judgment is not yet final and the defence has already announced their intention to appeal.
The Lack of an Intersectional Gender and Religious Approach to the Ruling
The central shortcoming of the ruling is the lack of recognition of the intersectional dimension of IS-perpetrated harm against the Yazidi on grounds of gender, religion as well as age. According to the court’s findings, IS persecuted members of religious minorities as “infidels” (paying poll tax) or “apostates”. This latter category included Yazidis, who were viewed as “devil worshippers” and the court found that IS purposefully sought their destruction as a group. During the centrally planned, coordinated attack on Sinjar in August 2014, IS occupied the area, dispossessed, captured people, and destroyed shrines as well as cultural sites. In the process, there was differential treatment according to gender. Men were forced to convert and then used as forced laborers. Those who refused were executed in mass executions. Women were abducted and enslaved, deprived of freedom of movement. The prices to be paid in the IS slave markets were based on age and “beauty”, ranging from three to four-digit amounts of dollars. During their enslavement, the women were forced to perform domestic labour and (significantly) younger women were subjected to sexual assault as well. The court emphasized that forced, unwanted pregnancies also occurred and that, at the time, any sexual intercourse with a non-Yazidi man meant exclusion from their own (religious) community. From the IS perspective, the rape of Yazidi women served the purpose of producing children of the Muslim faith. In addition to this main goal, the court found that the enslavement system and its economy contributed to the financial resources of IS.
The court’s findings of fact thus provide clear evidence of gender and religious discrimination in the commission of crimes against humanity. Yet, a coherent, cumulative legal characterisation of such persecutory conduct did unfortunately not occur. In November 2020, the victim’s counsel had filed a motion, requesting a re-evaluation of the legal characterization of the alleged criminal conduct. They argued that the indicted crimes against humanity were committed in a discriminatory and persecutory manner against an identifiable group on the intersecting grounds of religion and gender. Consequently, persecution on these two grounds should have been added to the indictment as a crime against humanity under Section 7 (1) 10. CCAIL – as it occurred in the case against Sarah O. in July 2021. However, persecution on intersecting grounds of gender and religion was not added to the indictment nor was it part of the final judgment. This reluctance to consider religious- and gender-based offenses, combined with a lack of experience dealing with the offense of “gender-based persecution” – which had never been brought before a German court – raises concerns that such offenses will continue to be overlooked, obscuring the discriminatory manner in which they were committed, their seriousness and the intent of the perpetrator.
Structural Barriers to a More Holistic Justice Outcome
At the intersection of calls for accountability by the international community, most notably the Yazidi communities across the world, and domestic rule of law realities, the Taha Al J. case showcased the multi-layered, structural impediments inherent to universal jurisdiction proceedings and trial. The proceedings in Frankfurt against Taha Al J. had no domestic link. Neither the defendant nor the victim are German citizens, and the crime did not take place in Germany. The court’s official language did not correspond to any of the languages or dialects spoken by either victim or defendant. There was no translation to the public gallery that allowed non-German speaking Yazidis to follow the trial.
Central to the proceedings was the trauma of an entire community carried by those who survived and exacerbated by the loss of those that are still missing. Nora M. testified repeatedly over the course of seven trial days, in addition to those at the Higher Regional Court in Munich in the trial of Jennifer W. It was apparent that the encounter with a traumatized, educationally disadvantaged witness from a foreign culture was difficult for the court.
Since 2017, “particularly vulnerable injured persons” are entitled to professional support and assistance throughout criminal proceedings in Germany, known as psychosocial trial support. The extent to which this law is being implemented effectively in light of limited resources, lack of specialised personnel and limited availability of specifically trained interpreters, remains unclear. The 44 psychosocial centres in Germany specialising in support of mass violence survivors have a waiting list of between 7.000 and 8.000 persons, most of which will not have any access to psychosocial support. The psychosocial trial support thus weighs on a system that is already overburdened.
Remarkably, two staff members of Yazda, an organisation which collected initial information from Nora M. in Iraq after her release, were called to testify and were flown from Iraq to Germany for that purpose. This poses the question, why not more persons with lived experiences from the context and affected communities were invited to testify as expert witnesses.
Other challenges were encountered regarding the public access to the proceedings, particularly affecting the largely foreign-language survivor community in Germany and beyond. Due to COVID-19, the number of seats in the public gallery was limited. Moreover, the presiding judge explicitly prohibited spectators from taking notes throughout the main hearing, officially to prevent the influencing of witnesses in parallel proceedings.
To mitigate, the Court could have exceptionally allowed the recordings of the events in the courtroom. Indeed, in German law there is an exception to the existing ban on audio recordings in courtrooms for trials of “outstanding contemporary historical significance for the Federal Republic of Germany” (Section 169 (2) Courts Constitution Act (CCA)). An expansive interpretation of this existing provision reading into the ‘significance for the Federal Republic of Germany’ one for the international community, could make recordings possible in the future.
As remarkable as the trial and the final verdict are, a closer analysis reveals the court’s difficulties in overcoming the multi-layered, structural obstacles inherent to universal jurisdiction proceedings. Moreover, the court failed to identify the religious- and gender-specific harm of the international crimes committed against the Yazidis, which is a key shortcoming in the current verdict. Shortcomings in this trial serve as a stepping stone for improvement in those to come. Advocates, the victim’s counsel, prosecutors, investigators, and judges each play their role in designing the landscape in which future trials will take place in which those with lived experience take up a more central role.
The International Criminal Law Working Group of Amnesty International has monitored this trial and information contained in this post stems from their trial monitoring reports.