In January 2022, the Higher Regional Court of Koblenz in Germany convicted former Syrian State intelligence officer Anwar Raslan, who led a unit of President Bashar al-Assad's security services at the General Intelligence Directorate’s al-Khatib detention facility in Damascus, also known as “Branch 251”. He is the most senior official to be put on trial in Europe and has been accused of overseeing the torture of detainees between April 2011 and September 2012. He was charged with rape, aggravated sexual assault, and 58 counts of murder.

In November 2021, the Higher Regional Court of Frankfurt, Germany, delivered a historic verdict and sentenced Taha al-Jumailly, an Iraqi national and former member of the Islamic State (IS)/Daesh, to life imprisonment for his role in the genocide of Iraq’s minority Yazidi community. The trial is notable for a number of reasons—not only is it the first to convict a perpetrator of the crimes against the Yazidi, but it is also the first trial to include the crime of genocide among the charges. It is also the first case tried under the principle of universal jurisdiction, charging the crime of genocide pursuant to Germany’s Code of Crimes against International Law (CCAIL), enacted in 2002. This piece will look at prosecuting international crimes through the avenue of universal jurisdiction to ensure accountability and end impunity for international crimes.

PERSECUTION OF THE YAZIDI COMMUNITY

The Yazidis are an ethno-religious group, constituting one of Iraq’s oldest minorities. They are ethnically Kurdish and their religion, believed to have been founded in the 11th century, has taken elements from other religions including Zoroastrianism, Judaism, Christianity, and Islam. There are discussions on the issue of whether the Yazidis form an ethnically distinct group. The IS regards them as “devil-worshippers,” and the their community has been denounced as infidels by the terrorist group Al-Qaida.

In 2014, the IS attacked the Yazidi community of Sinjar, in northwest Iraq. Reports soon emerged of men and boys being executed; of women and girls, some as young as nine years old, being kidnapped, sold, raped, sexually enslaved, beaten, and forced to work; and of boys separated from their families and forced into IS training camps. It is estimated that 10,000 Yazidis were either killed or kidnapped during the attack.

The United Nations Human Rights Council has reported that Yazidi women and girls under IS captivity have been subjected to sexual enslavement, rape, torture, and gross physical and mental abuse. Yazidi men and young boys were subjected to forced labour, such as, construction projects, digging trenches, and cleaning streets. They were forcibly converted to Islam and separated from their families. Yazidi boys were also indoctrinated and trained to fight for IS forces.

In 2016, the Independent International Commission of Inquiry on the Syrian Arab Republic categorically reported to the UN Human Rights Council that the violence wreaked upon the Yazidi community by the IS amounted to the crime of genocide, as well as multiple crimes against humanity and war crimes. August 3, 2021 marked seven years since the Yazidis were brutally targeted by the IS in northern Iraq in 2014. Yet, accountability and justice, though much needed and long overdue, seem unlikely. In such circumstances, the German court’s ruling is especially important and a rare instance of justice for the community.

THE CASE AGAINST TAHA AL-JUMAILLY

The German prosecutors submitted that al-Jumailly had “purchased” a Yazidi woman, Nora B., and her five-year-old daughter, Reda, at a Syrian base of the IS in 2015. It was further submitted that he, together with his wife, enslaved them and held them captive. The two had been taken as prisoners in August 2014 in the northern town of Kocho in Iraq and had been “sold and re-sold several times”. The defendant had then proceeded to keep them in his household, where insufficient food was provided to them, and where they were forced to “keep house and to live according to strict Islamic rules” and subjected to physical abuse. The case before the court involved the death of the five-year-old child who died of thirst as she was tied to the bars of a window in the open sun as punishment for wetting the bed due to an illness, on a day where the temperature reached 50 degrees Celsius. The mother of the child who survived captivity testified about her daughter’s suffering in the trial. 

al-Jumailly was also convicted of genocide, crimes against humanity resulting in death, war crimes, aiding and abetting war crimes, and bodily harm resulting in death. The presiding judge was quoted saying that the trial marked the first ever conviction across the world where a person has been found guilty for their role in the systematic persecution of the minority Yazidi community.

UNIVERSAL JURISDICTION—THE PATHWAY TO JUSTICE?

Universal jurisdiction operates on the reasoning that all states should be capable of possessing jurisdiction to prosecute crimes that are universally considered to be heinous and repugnant. It gives domestic courts the necessary means to make a meaningful contribution to international justice. Further, both the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda have recognised the existence of universal jurisdiction for prosecution of the four core crimes under international criminal law, including genocide.  

The al-Jumailly trial has been heralded as a historic one as neither the defendant, nor his victims, are German nationals and the crimes were not committed on German territory. Additionally, Iraq is not a signatory to the Rome Statute of the International Criminal Court (Rome Statute) and, consequently, the International Criminal Court (ICC) cannot exercise its jurisdiction over these crimes. However, if the UN Security Council were to refer the case to the ICC, then the ICC would be in a position to exercise jurisdiction over the crimes. This was attempted, unsuccessfully, in 2014 when senior UN officials appealed for accountability of the crimes committed by the IS, but the resolution to refer the investigation and prosecution of the crimes in Syria was vetoed by China and Russia.

Ordinarily, in such circumstances, domestic courts of a country would not have jurisdiction over the matter. However, German courts under the principle of universal jurisdiction have jurisdiction over the crimes of genocide, war crimes, and crimes against humanity. The principle of universal jurisdiction is enshrined under section 1 of Germany’s Code of Crimes against International Law (CCAIL), which provides the scope of application of the statute. Germany is one of the few countries to have domestically implemented the Rome Statute. Under the CCAIL, al-Jumailly was charged under section 6 (genocide), section 7 (crimes against humanity), and section 8 (war crimes against persons). 

Further, the existence of the Rome Statute does not diminish the need for its further recognition and implementation, as the Rome Statute with 123 states parties is widely, but not universally, accepted. An additional drawback of the ICC is that it has only temporal jurisdiction, as given under article 11 of the Rome Statute, and thus has jurisdiction only with respect to crimes committed after the Rome Statute entered into force, which severely limits the scope of the crimes it can prosecute. In light of these existing drawbacks combined with the geopolitical concerns that often act as a roadblock in the prosecution of international crimes, along with the inherent difficulty of prosecuting gender-based crimes, it is fair to conclude that the ICC faces a multitude of constraints in the prosecution of international crimes. Given this background, the use of universal jurisdiction by a third state that can prosecute ensures accountability and reduces the impunity that is often associated with international crimes. The use of universal jurisdiction ought to be viewed as a progressive step towards justice for the victims of heinous international crimes such as genocide, war crimes, and crimes against humanity.

Avanti is a final year law student at ILS Law College, Pune, India. Her main areas of interest include environmental law and public international law, and she aspires to pursue a career in human rights law. She's passionate about gender justice and equality and hopes to utilize the law as an instrument to create social impact.

Linkedin