On April 24, 2020, six years after the Islamic State (IS) began persecuting and exterminating the Yazidi, the first ever trial addressing genocide against the religious minority will commence in Frankfurt am Main. In this case, as in the first case addressing state torture in Syria against two former Syrian intelligence officers whose trial started in Koblenz today, the complications of prosecuting mass crimes in third states collide with the long-awaited hope for accountability.
Iraqi national Taha Al J. is accused of having trafficked human beings for the purpose of labor exploitation and having cruelly killed a person as a member of IS. The suspect is charged under the Code of Crimes Against International Law (CCAIL) – the 2002 implementation of the Rome Statute into German criminal law – for acts of genocide, crimes against humanity, and war crimes.
The indictment and charges in this case have never been published in English. For those interested, the specific charges are as follows. The suspect is accused of having trafficked human beings for the purpose of labor exploitation (§ 233 para. 1 sentence 1, para. 3, § 232 para. 3 nos. 1 and 2 German Criminal Code old version) and having cruelly killed a person for low motives as a member of the foreign terrorist organization IS (§ 211, § 129b para. 1 in connection with § 129a para. 1 German Criminal Code). In German criminal law, “low motives” (niedrige Beweggründe) refers to a catch-all category that has been introduced to cover all motives deemed completely unacceptable. Under the CCAIL, the charges in Al J.’s indictment include:
- the genocidal acts of killing, causing serious bodily or mental harm, and inflicting on the group conditions of life calculated to bring about their physical destruction in whole or in part (Section 6 (1), No. 1-3 CCAIL);
- killing, trafficking or enslavement, torture, and deprivation of liberty as a crime against humanity (Section 7 (1), No. 1, 3, 5 and 9 CCAIL); and
- the war crimes of killing and torture of persons (Section 8 (1), No. 1 and 3 CCAIL).
Al J. allegedly purchased two Yazidi females, a woman and her five-year-old daughter, as slaves at an IS base in Syria in late May or early June 2015. (We use the term “females” here to refer to their ascribed gender roles.) IS purportedly captured the two females in early August 2014 during a targeted attack on the Sinjar region that aimed to destroy the Yazidi religion in accordance with IS ideology. According to the indictment, Al. J. purchased and enslaved them with the same intention.
The indictment further recounts how the two Yazidi females were treated. They were given insufficient food and water, and they were subjected to constant punishment and humiliation, including beatings by Al J. He is further accused of having punished the minor by cuffing her to a window in the scorching heat, unprotected from the sun. The girl is said to have died as a result.
However, Al J. apparently was not alone in his actions. Shortly before enslaving the two females, Al J. married Jennifer W., a German national, according to Islamic rite. She is described as running the household with Al J. during the period in which the Yazidi females were held as slaves, and she has been on trial in Munich since April 2019 for, among other things, membership in a terrorist organization and crimes against humanity. A case similar to Jennifer W.’s that accuses a German and Tunisian national, Omaima A., of membership in a terrorist organization and crimes against humanity, among other things, will go to trial in Hamburg on May 4, 2020. Like Jennifer W., she allegedly joined IS, became part of a household, and participated in enslaving a Yazidi minor.
Al J.’s trial is remarkable in many ways. It is the first in history to address crimes committed against the Yazidi and include the crime of genocide among the charges. It is also the first universal jurisdiction trial charging the crime of genocide under the CCAIL. The principle of universal jurisdiction provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state. The principle allows national courts in third countries to address international crimes occurring abroad, to hold perpetrators criminally liable, and to prevent impunity.
Gendered Harm Remains Unrecognized
However, for all the ways it is remarkable, Al J.’s trial also raises concerns. The wording of the indictment as paraphrased on the website of the higher regional court is promising in that it speaks of the commission of enslavement with the intent to destroy. It remains to be seen, however, how the suspect’s conduct in the slave trade will be characterized. Looking at the charges, which include both enslavement and trafficking, we specifically hope the court will first provide a correct distinction between the criminal conducts of slavery, slave trade, and human trafficking. We further hope the court will appropriately characterize both slavery, including sexual slavery in future cases involving sexual violence in the context of slavery, and slave trade as international crimes, rather than trafficking under the domestic criminal framework. An appropriate characterization would be to charge the conduct as serious bodily or mental harm as genocide accumulatively with enslavement and gender-based persecution as a crime against humanity.
Moreover, the charges against Al J. – like those against Jennifer W. and Omaima A. – do not appear to recognize the gendered harm of genocidal acts against the Yazidis, nor do they include crimes of sexual violence, particularly sexual slavery. In fact, the indictment does not recognize any form of gendered harm. It fails to charge Al J.’s violent acts against the Yazidi females, including slavery and slave trade, as gender-based persecution under the CCAIL. Both the facts of the case and the legal characterization of the criminal conduct should have acknowledged that almost exclusively females were enslaved to domestic work under IS. Yazidi males on the other hand, were mostly killed or tortured. Such distinction suggests a gendered dimension to these acts.
In accordance with the widely accepted understanding of Article 7(3) of the Rome Statute, persecution on the grounds of gender does not only mean targeting a group because its members are either biologically “male” or “female.” “Rather, it means persecution by reason of socially constructed ideas about what it means to be ‘male’ and ‘female.’” Perpetrators persecuted Yazidi females and males, as well as LGBTIQ persons under IS in Iraq, because the their gender roles deviated from the IS strict rule regime and the perpetrators’ expectations within the context of their society.
As outlined by Sareta Ashraph and Akila Radhakrishnan, sexual violence forms an integral part of how genocide has been committed towards Yazidi women and girls. Yet sexual slavery is often mischaracterized as a recent or modern form of slavery, as highlighted by Patricia Viseur Sellers and Jocelyn Getgen Kestenbaum in their discussion of the Habré trial. Consequently, it is vital in this context to understand the gendered dimensions of slavery and the slave trade, which include the relation of both types of criminal conduct to sexual violence.
By failing to capture the gender-specific harm, the risk of inadequate prosecution of gender-based crimes runs high. In turn, it has the potential to undermine the trial’s legitimacy since the charges merely reflect a selection, instead of the full extent, of the crimes under the CCAIL that Al J. allegedly committed. This reluctance to charge gender-based crimes in combination with the lack of experience in dealing with the crime of “gender-based persecution” – to date, the crime has never been brought before a German court – suggests gender-based crimes may continue to be overlooked by prosecutors, obscuring their true nature and gravity.
By contrast, the Office of the German Federal Prosecutor has not shied away from gendered dimensions of crimes when the perpetrators are females. The prosecutor has charged exclusively female IS returnees with the war crime of pillage. The logic behind charging females, and not males, with pillage is that the evidence with respect to females supporting or having membership in IS is often too weak. Yet, gendered charging arising out of the discriminatory gender hierarchy within IS is not all that helpful.
As a matter of urgency, the Office of the German Federal Prosecutor and the German federal police should apply a gender analysis to international crimes and charge them accordingly. This would promote the recognition of gendered harm in such crimes, and it would accord with the prosecutorial strategies employed by key international organs, including the prosecutorial strategy on sexual and gender-based violence of the Office of the Prosecutor at the International Criminal Court and the integration of a gender perspective at the United Nations International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM). As universal jurisdiction trials commence, an appropriate blueprint should be laid out – for these and similar trials in the future – from the beginning. Perhaps most importantly, the Yazidi community should receive adequate acknowledgment of the gendered harm they have experienced.
The views expressed here are those of the authors and do not necessarily reflect the views of the European Center for Constitutional and Human Rights or the Institute for International Law at Leipzig University.