The self-described Islamic State (IS) is publicly accused of having committed, in addition to genocide and war crimes, crimes against humanity and persecution on the basis of religion and gender against the Yazidi, an Iraqi religious minority. Yet this religious and gender-based persecution has not been charged to date. We argue that these charges are justified, that it is important for the prosecution to include all relevant crimes, and that the reason for the omission so far is legal mischaracterization and unjustified reluctance to engage in the practice of cumulative charging of international crimes on the national level. We urge the Office of the German Federal Public Prosecutor to support the addition of these charges.

The Case against Taha A.-J.

In April 2020, the world’s first trial addressing genocide crimes against the Yazidi began at the Higher Regional Court (OLG) of Frankfurt. The Iraqi defendant, Taha A.-J., is alleged to have been a member of IS and, in this role, to have bought a Yazidi woman and her five-year-old daughter, kept them as slaves, and caused the girl to die of thirst in front of her mother. He is therefore accused of genocide, crimes against humanity (killing, torture, enslavement, deprivation of liberty) and war crimes (killing, torture) under the Code of Crimes against International Law (CCAIL).

The trial of Taha A.-J. is historic in several respects. First, it will contribute to the establishment of a legal truth about one of the most atrocious crimes of recent decades – namely, the international crimes committed against the Yazidi. It is also Germany’s first trial addressing the crime of genocide under the CCAIL. In addition, it is the first time that a suspect of international crimes is being tried in Germany when neither the perpetrator nor the victim are German nationals, the scene of the crime is in Iraq, and, most notably, the accused was not even on German soil when he was apprehended. Only on the basis of an arrest warrant issued by the Federal Supreme Court was it possible to arrest him in Greece and extradite him to Germany.

The underlying conduct took place in the northern Iraqi region of Shingal, 130 kilometers west of Mosul, where IS committed genocide and crimes against humanity against the Yazidi beginning in August 2014 and continuing to the present. Within a few months, thousands of Yazidi men were killed, and women and children were enslaved. Nearly 400,000 Yazidi individuals were driven from their home region, and to this day, thousands of women and children remain missing.

Not charged in the case so far is persecution on gender and religious grounds as a crime against humanity. But this could soon change. With a recently filed motion, the victim’s counsel, on behalf of the surviving mother, requested that the legal characterization of the alleged criminal conduct be re-evaluated.

The filing of such a request is possible since the German Code of Criminal Procedure allows, under Section 265, the possibility of modifying the legal characterization of facts introduced in the course of the trial. In the case in question, the victim’s counsel has 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 could be added to the indictment as a crime against humanity under Section 7 (1) Nr. 10 CCAIL.

Targeted on Grounds of Religion; Separated on Basis of Gender and Age

The accused in the Frankfurt trial has been indicted with, inter alia, enslavement as a crime against humanity under Section 7 (1) Nr. 3 CCAIL. But the charges do not yet acknowledge the persecution on the basis of gender and religion – itself a crime against humanity – that is evinced by the discriminatory patterns of enslavement, torture, and deprivation of liberty in this case and other similar cases.

The mass violence against the Yazidi commenced with IS attacking their villages in Northern Iraq in August 2014. Yazidi were intentionally and severely targeted because of their religion. According to expert Guido Steinberg, IS supporters regard the Yazidi as “devil worshippers” who, according to the IS ideology, are on the lowest social rung and must either be forcibly converted or destroyed. To this end, IS sorted captives according to gender and age – the separation of women, girls, men, and boys that followed immediately after the attacks was undertaken for the purpose of subjecting the members of the group, initially targeted due to their religion, to distinct crimes according to their gender and age. Older women were enslaved and forced to engage in domestic work. Younger women and girls were sexually enslaved, raped, and forcibly married. Men, on the other hand, were tortured and killed. Boys were indoctrinated and forced to convert through violence, including sexual violence, and trained to fight for IS as child soldiers. This pattern of attack and violence was repetitive during the raids of Yazidi villages and areas, providing strong evidence of a systematically gendered and religiously-discriminatory commission of crimes.

According to reports by the United Nations and human rights organizations, Yazidi women and girls were traded as slaves, enslaved as domestic servants, and forced into marriages and sexual slavery. To date, more than 3,000 Yazidi women and children are being held captive by IS or are considered missing.

The enslavement and trading of the Yazidi mother and daughter in the case against Taha A.J. was therefore part of a system of reducing Yazidi women and girls to property for the purpose of domestic servitude and in which some (though not all) were held as sexual slaves.

Within this system, IS explicitly attempted to justify sexual slavery on religious and gender grounds. In a document entitled, “Question and Answers on Taking and Capturing Slaves” published by IS’s Research and Fatwa Department, IS grants members permission to commit sexual violence, engage in the slave trade and to enslave non-Muslim women. The pamphlet reads: “it is permissible to have sexual intercourse with a female captive” and “it is permissible to buy, sell, or give as a gift female captives and slaves, for they are merely property.”

This pattern was corroborated by eyewitnesses and participants such as Leonora M., a female German national who joined IS as a minor who was arrested upon her return to Germany at the end of December 2020. Leonora confirmed that some Yazidi women were bought by IS members as slaves, then held while been given food and water only to be sold for a higher price to another IS member.

In short, the differential treatment of male and female Yazidi provides prima facie evidence of the gendered basis of the persecution, while the pattern of attack and enslavement of Yazidi communities provides prima facie evidence of religious persecution. In the course of the Taha A.-J. trial, the testimonies of expert witnesses and eyewitnesses provided corroborating information on the fact that enslavement under IS did not affect both genders, but was exclusively directed against Yazidi women and girls and was exacerbated by the strict gender roles prescribed by IS ideology.

The Role of the Office of Federal Public Prosecutor General

Despite the evidence of religious- and gender-based persecution introduced in the course of the trial in the Frankfurt case, the federal prosecutors’ office has not (yet) charged these crimes. The failure to charge this form of persecution fuels doubts that their significance and status have been sufficiently considered in the investigations to date. As a result, an important element of the survivors’ and wider community’s experiences of injustice risks being disregarded. However,  the office now has the opportunity to rectify the omission by supporting the motion to modify the charges.

The federal prosecutor recently made a step towards accountability for sexual and gender-based crimes in the Al Khatib trial in Koblenz. In the world’s first trial addressing Syrian state torture before the Koblenz Higher Regional Court, legal teams representing survivors also saw a need for the charges to fully reflect the scope and motives of the crimes committed. In November 2020, several victims’ legal teams requested that the evidence on crimes of sexual violence – more specifically rape and sexual coercion – collected in the context of the investigation and presented in the course of the trial be characterized and charged as crimes against humanity. Since sexual crimes were committed as part of a widespread and systematic attack against the civilian population (Section 7 (1) 6 CCAIL), they should not – in the Koblenz case – be exclusively charged as isolated incidents under the German criminal law. Rather, they should be charged in a way that appropriately reflects the context in which sexual violence was (and is being) committed – namely, in the context of systematic attacks, including torture, murder, and sexual violence, by the Syrian regime on individuals arbitrarily deprived of their liberty in detention facilities of the intelligence services and held under a pretence of political offenses. The fact that the federal prosecutor’s office appears to have not opposed the request indicates a potential willingness to remedy previous shortcomings in accounting for sexual and gender-based crimes.

The first verdict in the Koblenz case – and indeed, the first international verdict for atrocity crimes committed in Syria – was handed down on Feb. 24, 2021. Eyad A., a relatively low-level defendant accused of rounding up dissidents and delivering them to detention centers where they faced torture, was sentenced to four and a half years in prison for aiding and abetting torture and deprivation of liberty as a crime against humanity. The case against the main defendant, a more senior official who allegedly oversaw torture in detention centers, is ongoing, and no decision has yet been reached on whether to characterize sexual violence in these prisons as a crime against humanity.

Another promising development when it comes to gender justice in the context of universal jurisdiction is the extension in late December 2020 of the arrest warrant against a Syrian national accused of having committed international crimes as a doctor in a military hospital in Syria. He has now also been charged with attempted deprivation of reproductive capacity as a crime against humanity (Section 7 (1) 6 CCAIL).

Cumulative Charging to Account for Commission of Multidimensional Crimes

In the case of Taha A.-J., if the judges grant the motion of the legal team, it would set a remarkable blueprint for this and future trials. First, the amendment of the charges would allow for a legally complete coming to terms with the crimes committed against the surviving mother, which thousands of Yazidi women and girls have similarly endured and in some cases not survived. Second, a cumulative indictment of genocide and persecution as crimes against humanity, including the discriminatory aspects, would take into account the intersectional dimension of the acts. For the experience of the Yazidi illustrates that persecution rarely occurs only against individuals as representatives of one identifiable group, but rather on the basis of several, intersecting grounds of discrimination, such as race, religion, ethnicity, or gender, which are closely connected and influence each other.

There are practical considerations to the amendment of the charges, too. In this context, the elements of persecution on the basis of gender and religion would even be “easier” to prove than that of genocide, because the crime of persecution does not subjectively require that the defendant intended destruction of the group “as such.” Rather attacking a person on the basis of their gender or religious affiliation already fulfils the subjective element of the crime. In this respect, the motion of the legal team in Frankfurt is likely to play into the hands of the court in terms of evidence: in the event that the charge of genocide fails because the intent to destroy is difficult to prove – especially for a particular defendant – the group-related collective injustice against Yazidi women could at least be covered by the crime of persecution.

Yet so far, this is only theoretical. In practice, the crime of persecution under Section 7 (1) 6 CCAIL has not been charged even once.

Sexualized Violence Does Not Equal Gender-Based Violence

One of the reasons for a neglect of specifically gender-based acts of persecution that persists to this day – in the Taha A.-J. case and others – is legal mischaracterization born of a misapprehension of the meaning of “gender-based” discrimination or violence. For example, the failure to distinguish between sexualized and gender-based violence often leads to the assumption that in cases in which no sexualized act of violence has been committed against the victim’s body, there can be no gender-based persecution. This is as obviously wrong as it is fatal. Gender-based persecution encompasses sexual violence, but can also refer to a variety of other forms of discrimination, from division of tasks in forced labor to specific forms of mistreatment – or, as in the case of the crimes against the Yazidi, murder and enslavement – depending on the victim’s gender.

The example of the Frankfurt trial shows how lethal such a mischaracterization can be. Although the enslavement of the two Yazidi victims with which Taha A.-J. has been charged in Frankfurt does not include direct sexual acts, the defendant apparently regarded the woman and her daughter as his “property” and thus exercised gender-based power of domination over the women. This gender hierarchy enabled these acts which led to the child’s death.

A Step Toward Intersectional Justice in International Criminal Law?

By failing to adequately criminalize and effectively account for persecution on intersecting religious and gender grounds, there is a risk of inadequate prosecution, as the indictment reflects only a selection and not the full extent of the crimes the accused is alleged to have committed. It is crucial for affected survivors and survivor communities at large that not only the defendant’s intent to destroy (i.e. commit genocide) is investigated and prosecuted but also the discriminatory intent towards groups identified on the basis of their religion and gender (i.e. persecution), which paved the way to genocide. These are two different crimes that each warrant examination. Investigations and prosecutions must be based on an intersectional analysis of the crimes committed and harms suffered in order to grapple with the full breath of the criminal conduct without silencing any of the intersecting experiences of injustice.

In this respect, the way in which the German judiciary decides to handle the request for extension of charges on the crimes committed against the Yazidi could mean a crucial step forward for gender and intersectional justice in the context of universal jurisdiction investigations.

Image: Iraqi Yazidis attend a candle-lit vigil in the Sharya area, some 15 kilometres from the northern city of Dohuk in the autonomous Iraqi Kurdistan region on August 3, 2020, marking the sixth anniversary of the Islamic State (IS) group’s attack on the Yazidi community in the northwestern Sinjar district. Their signs read, from left to right, “The genocide is ongoing unless there [are not] still kidnapped women and children;” “Support women survivors from ISIS captivity;” and “We will not give up; We will not stop until all kidnapped are returned.” (Photo by SAFIN HAMED/AFP via Getty Images)