War crimes: universal jurisdiction guarantees convictions for genocide against Yazidis

Jennifer VenisWednesday, August 3, 2022

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

At the end of July, German national Jalda A was sentenced to more than five years in prison for complicity in genocide, as well as crimes against humanity and war crimes. She had enslaved and abused a Yazidi woman, “M”.

After the verdict, M said, “There is no punishment for the defendant that could undo the suffering. At the end of her sentence, the defendant will be free to live with her family. It was taken away from me forever.

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

German courts have convicted several former ISIS operatives for crimes against 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 girl, Reda, and her mother, Nora B. Reda, died when, as punishment for wetting her bed, Taha left her tied outside in the sun for hours .

The trials relied on the principle of universal jurisdiction (UJ), which allows for domestic prosecution of certain international crimes committed elsewhere, even if under some laws the suspect or victim has no connection to the prosecuting country. . Taha’s conviction represented a “pure” criminal justice case: a crime committed in Iraq, by an Iraqi national extradited from Greece and a victim who was still in Iraq when the investigation began.

The future of international criminal justice is multi-layered, with multiple co-existing centers of gravity

Sareta Ashraphe
Co-Chair, IBA War Crimes Committee

The tool has enabled several other world firsts, including Sweden’s conviction of a former Iranian official for the 1988 massacre of thousands of political prisoners, and Germany’s conviction of a Syrian official for government-sponsored torture. ‘State.

Amanda Ghahremani, a Canadian-based international lawyer and co-researcher with the Canadian Partnership for International Justice Academic Network, calls this principle “a tool of last resort” because crimes should be prosecuted domestically, but these countries can being unable or even unwilling to demand accountability, “often because the perpetrators are still in power”.

She says states are obligated to prosecute fundamental and universally prohibited crimes like genocide and torture. “The reason for the proliferation of UJ statutes over the past 20 years is that countries were fulfilling their obligation under the Rome Statute to end impunity for these crimes. So if there are no prosecutions where the crime was committed, and if the International Criminal Court [ICC] can’t prosecute either, so countries with UJ have a responsibility to do so.

Sareta Ashraph, co-chair of the IBA’s War Crimes Committee and senior legal consultant at Garden Court Chambers in London, said “the importance of national courts and prosecutions to the experience of international criminal justice n ‘has ceased to deepen’.

Although it recognizes that “meaningful justice” must come from national prosecutions in which survivors can participate fully, Iraq has not incorporated international crimes into its criminal code, so “these sparks of accountability are incredibly significant for increase 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-layered, with multiple co-existing centers of gravity,” including such third-state prosecutions, she says. “One can perhaps speak of ‘justice in solidarity’ – an acknowledgment that the international community plays a role in ensuring accountability for the horrific and intolerable crimes committed by the Islamic State.”

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

She says it’s “interesting to compare how these trials are handled in national courts and in international courts, because it’s completely different.” Victim participation is stronger in Germany than at the ICC, which would also have required hundreds of fact witnesses to prove genocide, while only one was needed to convict Taha.

“I have the impression that the German judges treat these cases as they would treat any other case,” says von Wistinghausen. “So if you have a witness who offers straightforward and credible testimony, that’s enough to secure a conviction, regardless of whether it’s one of the worst crimes that can be committed.”

For survivors, it has made justice more accessible. Natia Navrouzov is director of legal advocacy at Yazda, an organization that advocates for and supports survivors, including collecting witness testimony and crime scene data to create a historical record and strengthen accountability efforts. Yazda has made several trials possible by identifying key witnesses, including Nora, and helping them travel to testify.

For Navrouzov, “what is so strong here is how the testimony of a single survivor could lead to such a condemnation. It brings so much hope to other Yazidi survivors, but also to survivors from other places. Seeing that your own testimony can have such an impact is so empowering and powerful.

However, “the fact that justice takes place thousands of miles from my home is not a good thing. Unless we raise awareness, survivors often just don’t know it’s happening, or they have misinformation. Navruzov also fears it suggests Yazidis need to leave their homes to access justice.

Von Wistinghuasen points out that defendants in UJ cases also face challenges, not just because they are being prosecuted in an unknown jurisdiction. Depending on the location of the trial, their legal team or judge may be relatively new to international criminal prosecutions.

For the nations where these crimes took place, the UJ can be seen as a violation of sovereignty. After the Swedish condemnation of the ex-Iranian 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 UJ enforcement is principled, not political. “It is important that our gaze is not only on low-ranking perpetrators in developing countries, but also on the structures of oppression that enable and even encourage these crimes in the first place,” she says. “This includes examining Western countries and companies that are responsible for or complicit in atrocities and human rights abuses.”

The principle will continue to develop, but for now, its impact is staggering. “In Yazidi history, it is said that we have experienced 73 other genocides, plus the one committed by Daesh. This is the first time in our history that we know of a convicted perpetrator for crimes against Yazidis,” Navruzov said. Overview. “We have to make sure this domino effect continues – we owe it to a whole community, to the survivors.”

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

Thelma J. Longworth