The Role of Humanitarian Actors in the World’s First Conviction for Genocide against the Yazidi

Author:	Mais Masadeh
Date:	19. January 2022

On November 30, 2021, the Higher Regional Court Frankfurt convicted former Islamic State (ISIS) member Taha Al-J. of genocide, crimes against humanity, and war crimes. This conviction marks a significant turning point in global legal and humanitarian efforts to deliver accountability for international crimes committed by ISIS, and to achieving justice for the victims and survivors. Although universal jurisdiction and national proceedings have proven to be the most promising avenues for justice recently (examples: Syrian Regime Officer, ISIS bride), court proceedings have revealed that it is almost impossible to deal with the totality of ISIS atrocities without the assistance of humanitarian actors. Indeed, humanitarian organizations have demonstrated to be effective in identifying witnesses and collecting evidence from the ground to address the inherent challenges that the scale of ISIS crimes present.

ISIS atrocities against Yazidis

In August 2014, ISIS attacked the Yazidi villages in the Sinjar region in the northern part of the Kurdistan Region of Iraq. It is estimated that around 5,500 Yazidis were killed and more than 6,000 were kidnapped in that month. The Yazidis worship a peacock deity – Tawusi Malek – as their guiding spirit. ISIS claimed that Tawusi Malek is identical to the Qur’anic Satan and justified killing and enslaving the minority group on distorted Islamic texts. The genocide committed against the Yazidis has not only primarily been accomplished through mass killings, but also by committing crimes with the overall objective of destroying the religious minority, in whole or in part, as envisaged by the drafters of the 1948 Genocide Convention and now reflected in Art. 6 of the Rome Statute.

The case of Taha Al-J.

In the summer of 2015, Taha Al-J., a 29-year-old Iraqi male, bought a Yazidi mother and her five-year-old daughter from an ISIS fighter in Syria. Taha Al-J. and his wife back then, Jennifer W., a German national held the Yazidi mother and daughter against their will, provided them with insufficient food and prohibited them to practice their religion. One day, Taha Al-J. forced the child outside – tied her to a window unprotected from a 50° Celsius weather – as a punishment for wetting the mattress. As a result of harsh conditions, the child died. Taha Al-J., then flew to Turkey and then Greece where he was arrested. On the basis of an arrest warrant issued by the Federal Supreme Court, Taha Al-J. was then extradited to Germany in October 2019.  He was charged with war crimes, crimes against humanity,and genocide by the Higher Regional Court of Frankfurt (Oberlandesgericht). In November 2021, Taha Al-J was sentenced to life imprisonment and has the right to appeal.

The significance of this historic verdict

Taha Al-J. was tried under the Code of Crimes Against International Law (CCAIL) – the 2002 implementation of the Rome Statute into German criminal law. The judges convicted Taha Al-J. of genocide § 6 CCAIL, crimes against humanity § 7 CCAIL, and war crimes § 8 CCAIL. The court called forward several witnesses and experts, including former wife of Taha Al-J., who was sentenced to 10 years in prison for crimes against humanity for her role in the Yazidi child’s death, two humanitarian workers from Iraq to testify, and the child’s mother who was forced to witness her daughter’s death.

After trial, the judges found that Taha Al-J. acted to the detriment of the Yazidi mother and her daughter with the intent to eliminate and destroy the ethno-religious minority group. This was particularly complex and exceptional, not only because the crime had occurred internationally, but also because the crime of genocide is quite difficult to prove. Proving the element of ‘intent to destroy, in whole or in part,’ is a prerequisite for the criminal offence of genocide under international law. Even though ISIS has openly declared their aim to destruct the Yazidi, the prosecutors were faced with the task of deducing from Taha’s actions that he was specifically concerned with destroying, in part or in whole, the Yazidis. The mother’s statement was paramount in the process. Remarkably, prosecutors argued that the way Taha treated the mother and her daughter was part of ISIS plan to destroy the Yazidi religious community.

This historic verdict marks Germany’s first trial addressing the crime of genocide under the CCAIL. The law provides Germany with a framework for exercising the legal principle of universal jurisdiction over international crimes. The ratio decidendi behind the principle is that all states should be able to possess jurisdiction to prosecute those crimes that are “universally considered heinous and repugnant.” § 1 of the CCAIL states that the law applies to all offenses against international law listed under § 6 to §12 and requires no nexus to Germany. This means that German courts could try perpetrators and don’t require them being present inside its borders.

Furthermore, for the first time in a judicial judgement on an ISIS case, we see these crimes called by what they were: genocide. This marks a turning point in efforts to deliver justice for the victims of ISIS. Comparably, Iraqi courts has been trying ISIS perpetrators for years now. But mostly under Iraqi anti-terrorism law for crimes against the State. The presiding judge in the Taha Al-J. case, Christoph Koller, was quoted  saying “it was the first genocide conviction worldwide over a person’s role in the systematic persecution by IS of the Yazidi religious minority.” The Taha Al-J. case represents the world’s first conviction for genocide against the Yazidi and an important judicial precedent for the German justice system.

The role of humanitarian and inter-governmental organizations in advancing the fight for justice

Given the complexities of collecting reliable evidence on international crimes, testifying in courts is the most visible form of co-operation. In the Taha Al-J trial’s proceedings, two main entities were instrumental in identifying witnesses and evaluating evidence which prosecutors utilized in the court. These were the non-governmental organization (NGO) Yazda, and the inter-governmental UN agency, Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISIL (UNITAD).

Yazda had a central role in identifying witnesses for the case and documenting a community-led evidence repertoire of testimonies in the Kurdistan Region of Iraq against ISIS perpetrators. One of them was Nora M, the mother of the deceased child in the Taha Al-J case. Yazda provided the German court with the initial information and statement from Nora M. Moreover, two humanitarian workers from Yazda traveled from Iraq to Frankfurt to testify, despite the difficult conditions of the Corona pandemic. All testimonies were paramount in the legal proceedings, in particular with proving the intent in the genocide offense.

Natia Navrouzov, Legal Advocacy Director of Yazda, emphasized the role of the organization in the  case proceedings in a DW interview. She said “The organization was able to identify the surviving victim and put her in touch with the authorities in Germany”. She further stressed on the landmark conviction calling it “truly historic” in particular in achieving justice for the victims and survivors. Navrouzoy added that Yazda’s role did not stop there but the organization continues to receive requests for information from many different countries, indicating many other investigations were in progress.  Navrouzoy stressed on the importance of cooperation with humanitarian workers on the ground for future legal proceedings “we also wanted to tell countries that if they don’t have the evidence, they can come to organizations such as Yazda”.

UNITAD supported German prosecutors by confirming that documentation purportedly indicating the deceased Yazidi child had survived were fraudulent. By way of background, UNITAD was established pursuant to the Security Council Resolution no. 2379 of 2017. The UN-Security Council adopted the resolution after the government of Iraq urged the international community to help in prosecuting ISIS perpetrators. UNITAD’s mandate is to build the capacity and assist local authorities to collect preserve, save evidence amount to war crimes and crimes against humanity including genocide.

Evidence which Yazda and UNITAD continue to identify and evaluate are brought forward to Iraqi domestic courts as well as international trials to hold ISIS perpetrators accountable for their crimes. Several witnesses, many of whom are survivors of ISIS, have already testified in Kurdish and Iraqi courts. This demonstrates crucial partnerships across, non-governmental organizations, UN agencies, affected community and (inter)national authorities which results in delivering justice for ISIS crimes.

Limitations and recommendations

Although exercising universal jurisdiction has proven to successfully deliver a modicum of justice, it is impossible to deal with the totality of ISIS atrocities solely along this avenue. It is recommended therefore that other countries follow the German example of applying universal jurisdiction, that Iraqi courts align with international standards and overall to develop a holistic cooperation from legal as well as humanitarian actors and organizations to hold ISIS perpetrators accountable for their crimes.

Only a few countries, in addition to Germany, have convicted ISIS perpetrators using the principle of universal jurisdiction, such as France and Greece. German courts had already convicted four German ISIS returnees Jennifer W., Nurten , Sarah O., and Omaima A. of aiding and abetting crimes against humanity committed against Yazidis. However, these cases remain limited for several reasons. First, the legal framework of the universal jurisdiction varies from one country to another. As some countries limit its application to perpetrator’s presence on their soil, others, such as Germany, adopted flexible standards which does not require a perpetrator’s presence inside its borders. Second, the investigation and prosecution of these crimes requires large funding and resources given that the crime scene and witnesses are exterritorial. Third, the safety of witnesses is vital. Protective measures must take place into ensuring the safeguarding of victims, witnesses, and their families.

Humanitarian organizations and NGOs can mitigate these limitations. Organizations such as Yazda for instance showed their effectiveness in conducting their independent investigation and evaluating evidence which then was presented to prosecutors. This is usually the role of investigative teams assigned by the court. With the assistance of Yazda, it minimized the amount of monetary and human resources necessary for the trial. Moreover, local and international humanitarian organizations can assist further in establishing procedures to ensure the protection and safeguarding of witnesses. For instance, the NGO Coordination Committee for Iraq (NCCI) coordinates the efforts of NGOs to protect survivors, ensures their informed consent to participate in investigation procedures, addresses humanitarian needs and promotes respect for human rights in Iraq.

While Iraq is not a member of the ICC, Iraqi courts can help advancing the road to justice by holding ISIS perpetrators accountable for genocide. However, legal reforms which would bring Iraqi penal law into alignment with international criminal law and international trial standards are an important step to further improve the push for justice. Additionally, there is a need to build the capacity of judges and legal teams to ensure robust prosecutions that produce unimpeachable results against war crimes. So far, Iraqi courts have issued capital punishment in accordance with the Anti-Terrorism Act of 2005 merely for ISIS-membership. International organization such as the Nadia Initiative, founded by a genocide survivor, advocates for the adoption of new legislation in Iraq which would fill some of the current gaps and ensure peacekeeping and security.

In conclusion, humanitarian actors and organizations have put in a tremendous effort to assist in the trial of Taha Al-J. and to mitigate the limitations of the principle of universal jurisdiction. Their efforts included identifying witnesses, collecting evidence, and advocating for legal reform. The holistic cooperation shown in this case is a testament of the tenacity for justice that actors, governments, NGOs, and Yazidi survivors have been advocating, campaigning, and calling for to break impunity of ISIS and move towards accountability for their heinous crimes. It is clear that the struggle for justice in the case of the heinous crimes committed by ISIS is one that can only be successfully concluded as part of an international effort which includes legal actors, survivors, and witnessed and must be done in conjunction with the humanitarian community.

About the author: Mais Masadeh is a DAAD Doctoral Research Fellow and Research Associate at the Institut für Friedenssicherungsrecht und Humanitäres Völkerrecht (IFHV) in Germany. Before joining the IFHV, Mais has held positions  the UN-International Organization for Migration (IOM) on combating human trafficking in Jordan, Iraq, Kurdistan Region of Iraq.