War crimes: Universal jurisdiction secures convictions for genocide against Yazidi people

Jennifer VenisWednesday 3 August 2022

A German court has handed down the second conviction of genocide for Islamic State of Iraq and Syria's (ISIS) campaign to eradicate the Yazidi religious minority, seven months after the first genocide conviction. 

In late July, German national Jalda A was sentenced to over five years’ imprisonment for aiding and abetting genocide, as well as crimes against humanity and war crimes. She had enslaved and abused a Yazidi woman, 'M'.

After the verdict, M stated: ‘There is no punishment for the accused that could undo the suffering. At the end of her sentence, the defendant will be free to live with her family. That has been taken away from me forever.’

After capturing parts of Iraq and Syria in 2014, ISIS carried out attacks upon and enslaved members of the Yazidi people.

German courts have convicted several former ISIS members for crimes against the Yazidis, but Iraqi national Taha al-J became the first to be convicted of genocide in November. He had enslaved and abused a five-year-old, Reda, and her mother, Nora B. Reda died when, as punishment for wetting the bed, Taha left her tied outside in the sun for hours.

The trials relied on the principle of universal jurisdiction (UJ), which enables national prosecutions of certain international crimes committed elsewhere, even if, under some statutes, the suspect or victim have no connection to the prosecuting country. Taha’s conviction represented a ‘pure’ UJ case: a crime committed in Iraq, by an Iraqi national who was extradited from Greece, and a victim who was still in Iraq when the investigation began.

The future of international criminal justice is multi-tiered, with multiple co-existing centres of gravity

Sareta Ashraph
Co-Chair, IBA War Crimes Committee

The tool has enabled several other global firsts, including Sweden’s conviction of an Iranian ex-official for the 1988 massacre of thousands of political prisoners, and Germany’s conviction of a Syrian official for state-sponsored torture.

Amanda Ghahremani, a Canada-based international lawyer and a co-investigator in the academic network Canadian Partnership for International Justice, calls the principle a ‘tool of last resort’, because crimes should be prosecuted domestically, but those countries may be unable or even unwilling to pursue accountability, ‘often because the perpetrators are still in power’.

She says states are obliged to prosecute core, universally prohibited crimes like genocide and torture. ‘The reason for the surge of UJ statutes over the last 20 years is because countries were fulfilling their obligation under the Rome Statute to end impunity for these crimes. So if there is no prosecution where the crime occurred, and if the International Criminal Court [ICC] cannot prosecute either, then countries with UJ have a responsibility to do so.’

Sareta Ashraph, Co-Chair of the IBA War Crimes Committee and a senior legal consultant at Garden Court Chambers in London, says ‘the importance of national courts and prosecutions to the international criminal justice experiment has continued to deepen’.

Although she agrees that ‘meaningful justice’ must come from domestic prosecutions where survivors can participate fully, Iraq hasn’t incorporated international crimes into its criminal code, so ‘these sparks of accountability are incredibly meaningful in increasing our understanding of what happened to the Yazidis and developing our understanding of the crime of genocide itself’.

‘The future of international criminal justice is multi-tiered, with multiple co-existing centres of gravity’ including these third-state prosecutions, she says. ‘One can perhaps refer to this as “solidarity justice” – a recognition that the international community plays a role to ensure accountability for horrific and intolerable crimes that ISIS committed.’

Natalie von Wistinghausen, a Berlin-based international criminal lawyer and Member of the IBA War Crimes Committee Advisory Board, has represented co-plaintiffs in several of these cases, including M and Nora B.

She says it’s ‘interesting to compare how these trials are dealt with before national jurisdictions and before international jurisdictions, because it's completely different’. Victim participation is stronger in Germany than at the ICC, which would also have required hundreds of factual witnesses to prove a genocide, while only one was needed to convict Taha.

‘My impression is that the German judges deal with these cases just as they would deal with any other case,’ says von Wistinghausen. ‘So, if you have one witness who offers a straight-forward and credible testimony, it’s enough to secure a conviction, independent of the fact that it's one of the worst crimes that can be committed.’

For survivors, that made justice more accessible. Natia Navrouzov is Legal Advocacy Director at Yazda, an organisation advocating for and supporting survivors, including by gathering witness testimony and crime scene data to create a historical record and bolster accountability efforts. Yazda has made several trials possible by identifying key witnesses, including Nora, and helping them travel to testify.

For Navrouzov, ‘what’s so strong here is how the testimony of just one survivor could lead to such a conviction. It brings so much hope for other Yazidi survivors, but also survivors from other places. To see that your own testimony can have such an impact is so empowering and powerful.’

However, ‘the fact that justice is happening thousands of kilometres from home is not a good thing. Unless we do outreach, survivors often just don’t know it’s happening, or they have misinformation.’ Navrouzov also fears it suggests Yazidis need to leave their home to access justice.

Von Wistinghuasen highlights that defendants in UJ cases also face challenges, not only because they are prosecuted in an unfamiliar jurisdiction. Depending on the trial’s location, their legal team or judge may be relatively new to international criminal law prosecutions.

For the nations where these crimes took place, UJ can be seen as a breach of sovereignty. After the Swedish conviction of the Iranian ex-official, the Iranian ambassador condemned the judgment as ‘baseless and political’. Cases in Europe also tend to deal with crimes in less developed countries, leading some to call for greater regulation to prevent a ‘neo-colonialist’ approach.

Ghahremani argues that the best way to balance this conflict to ensure the application of UJ is principled, not political. ‘It’s important that our gaze is not only towards the easier, low-rank perpetrators from developing countries, but also towards the structures of oppression that allow and even encourage these crimes in the first place’, she says. ‘This includes looking at countries and corporations in the West who are either responsible or complicit in atrocity crimes and human rights abuses.’

The principle will continue to develop, but for now, its impact is staggering. ‘In the Yazidi history, we say that we went through 73 other genocides, plus the one committed by ISIS. This is the first time in our history that we are aware of a perpetrator being convicted for crimes against the Yazidis’, Navrouzov tells Global Insight. ‘We need to make sure that this domino effect continues – we owe it to a whole community, to survivors.’

Image credit: A young man holds the national Yazidi flag in his hands against the background of high mountains, forests and rivers. Виталий Сова/AdobeStock.com

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